When it comes to age discrimination (or any discrimination, really) it’s not just WHAT you say, it’s not just HOW you say it, it’s also WHERE you say it.
Wait. What does that mean? Does it mean the physical location in which you might say something? Does that include virtual locations? The short answers are “yes” and “yes”.
There’s at least one of you out there thinking so loudly I can hear you saying, “I still don’t understand. How does that work? Give me an example.”. Absolutely! You know I always (or at least usually) have a real-life case example and this time is no exception, so read on…
So, here, in a nutshell, is what went down:
Target, the Communication Workers of America union, and 2 of its members last month settled allegations of federal Age Discrimination in Employment Act (ADEA) violations based on where it posted its job openings.
Specifically, the CWA and 2 union members filed an EEOC charge in 2018 claiming that in 2017 Target posted job openings for a store manager position on a social media platform that were directed at younger workers within certain age ranges only, and not to older workers. (Both candidates were over 40 years of age.) Apparently, Target used audience selection tools to direct its postings to younger workers. The posting itself also said it was looking for was looking for “a young, energetic leader” who was “passionate about technology”. Futhermore, it appears that Target did not even dispute doing so.
Both union members filed a charge with the EEOC. The EEOC found reasonable cause to believe that Target had in fact discriminated against older workers in violation of the ADEA.
That said, Target, even after having settled the allegations with the Communications Workers of America union, contends that its use of those audience selection tools and the actual content of the post does not violate any laws. Target has nonetheless agreed, per the settlement, to recruit on websites used by older workers, use images of older workers in its job ads, and participate in job fairs commonly attended by older workers. Target also has to pay $75,000 to 2 workers and provide appropriate training.
So, Target doesn’t even attempt to deny its actions, but argues that the actions didn’t violate any laws — or at least not the ADEA. At best Target’s argument appears to me to be on shaky ground. If Target only or primarily posted on social media sites where it used audience selection tools that enabled it to target younger workers, then its practices specifically excluded older workers, which certainly seems to support an age discrimination claim. When specific behaviors such as these treat people in protected classes differently, that’s known as disparate treatment discrimination. (For those new to the wonderful wide world of anti-discrimination law, protected classes are those groups identified as protected under anti-discrimination laws, such as race, sex, religion, national origin, disability, etc.)
If the audience selection tools weren’t in and of themselves necessarily aimed to younger workers, but Target recruited exclusively or primarily on sites mostly used by younger workers, then, again, Target’s practices would have inherently excluded older workers. When you add the language in the posting, Target’s position that it didn’t violate any laws, falls apart. The CWA members seem to have taken the position that Target was saying “we don’t want anyone over a certain age” without saying it. I get it. The argument makes sense.
This particular practice (targeting websites more popular with younger workers) could also, under the right facts, lend support to a disparate impact claim. When an employer’s practice, on its face, appears neutral, but adversely impacts a disproportionate number of people from one or more protected classes, it is said to have a disparate impact on the class(es) in question. Practices having such a disparate impact are also discriminatory under federal and state anti-discrimination laws.
You can’t have it both ways. You can’t target audiences that exclude one or more protected classes, refuse to change your practices, and then claim you don’t discriminate. If you know that you are selecting only certain audiences and not others, with no connection to job requirements, you will be hard-pressed to argue that you’re not discriminating. You can’t knowingly engage in practices that adversely impact a disproportionate number of people in one or more protected classes and claim you don’t discriminate.
I mean, if you’re looking for certain customers or clients, don’t you advertise, network, and market in forums and on platforms with that audience? If you want a certain demographic wouldn’t you direct your efforts to a place where you’re likely to find that audience?
On the other hand, if you really are an equal opportunity employer, wouldn’t you advertise, network and market in multiple, diverse forums in order to attract a diverse, qualified applicant pool? If not, you can’t really be surprised when one or more employees sue. But the benefits of being an equal opportunity employer go beyond just avoiding lawsuits (along with the big payouts of settlements, verdicts, and/or legal fees)
You know what your business’ greatest assets and liabilities are? Your employees. Wait. Which are they? That depends on the tone set by the leadership team. Your employees can be your greatest assets and brand ambassadors if you decide to be the type of employer that’s looking to attract and retain good talent. After all, if you could run your business without employees, you wouldn’t have been hiring in the first place, would you?
Now might be a good time to review your recruitment practices. In today’s business world, a set-it-and-forget-it approach is not likely to serve you well.
Are you an employer interested in proactively addressing workplace challenges and company culture? Visit my website, http://www.janetteleveylaw.com to contact me for a complimentary 20-minute consultation.
Watch my television interview on Good Morning HR with Mike Coffey on Mental Health and the ADA.
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