Legal

Is Hiring for Digital Natives Age Discrimination?

By Jon Hyman

May. 6, 2015

Photo courtesy of Thinkstock.

Let’s say you’re looking to fill a position at your company that requires a certain degree of technical proficiency. Or, you just want to make sure that the person you hire is comfortable with a computer, an email account, and an iPhone. Is it legal to advertise that the position requires a “digital native?” According to Fortune.com, some companies have begun using this term as a hiring criteria in job postings. Yet, is “digital native” simply code for “younger?”

“Digital native” certainly appears to be a loaded term. According to the Fortune article, some employment attorneys believe that the “trend” towards digital natives is “troubling” and “a veiled form of age discrimination.”

  • “This is a very risky area because we’re using the term that has connotations associated with it that are very age-based. It’s kind of a loaded term.” Ingrid Fredeen, attorney and vice president of NAVEX Global

  • “I don’t believe using ‘digital native,’ a generational term, as a job requirement would stand up in court. I think older individuals could definitely argue ‘digital native’ requirements are just a pretext for age discrimination.” Christy Holstege, California civil rights attorney

Let me offer a counter-argument. I’m 42 years old, more tech-savvy than most, and, by any definition, a digital native. I’ve been using computers since my early grade-school years. I’d fit any criteria seeking a “digital native,” and, yet, I’m also inside the age-protected class. While I do not believe companies should use “digital native” in job advertisement or descriptions (just as I wouldn’t use “recent graduate”), one challenging its use cannot examine that use in a vacuum. Instead, take a look at the hiring demographics. How many employees over 40 (over 50, over 60) hold a position that calls for a digital native. If the answer is “none,” then the employer has a huge problem. If, however, there exists a good mix of ages—both outside and inside the protected class—then there also exists a great argument that the term “digital native” has no loaded, illegal subtext.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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