“Digital Native” — Watch Out for Code Words

May 21 2015 - Discrimination, Hiring - Gail Cecchettini Whaley

A recent article in Fortune magazine brought attention to a new recruiting trend of employers seeking to hire “digital natives.” According to the article, many employers are starting to use this term in employment ads, causing concern that the term is just a proxy for age discrimination. Fortune did a search of listings on a career site and found dozens using “digital native” as a job requirement.

The term appears to have originated in an essay by Mark Prensky which defined “digital native” as someone born during or after the start of the digital world, as compared to “digital immigrants” – those not born into the digital world but who, at a later point, became fascinated by and adopted many or most aspects of new technology.

It’s not clear whether employers are aware of this definition when they create their job ads.

Regardless, when an employer lists “digital native” as a qualification for a job, it may appear that the employer is biased toward young candidates. This could lead to age discrimination claims if the qualification excludes job candidates who are age 40 and over.

The federal Equal Employment Opportunity Commission (EEOC) has taken a strong position on the use of code words that may mask employment discrimination, stating that phrases such as “recent graduate” may be unlawful because the phrases could discourage people 40 and over from applying for the job.

Other similar phrases can also get employers into trouble. For instance, a restaurant company was recently hit by an EEOC lawsuit for age discrimination because older applicants were told that the restaurant desired a youthful image or was looking for “fresh” employees.

The best practice is to avoid code words entirely. In most cases, the employer does not actually want only 20-year-olds to apply for the job, but is trying to point out that it wants a tech-savy employee with strong, up-to-the-minute digital skills. So instead of using a code word, describe the specific skills and qualifications that are required for the job. This is a best practice in any situation.

Although this requires more work from your company when creating the job ad, you will not risk narrowing your candidate pool and are more likely to find the candidate with the precise skill set you need. As a bonus, avoiding code words will help you avoid charges of hiring bias.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

HRCalifornia members can read more about lawful recruiting practices. Not a member? See how HRCalifornia can help you.

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