Can seeking “digital natives” in job ad get me sued?

New code word for “too old to hire”

Can a hiring manager’s comments during applicant interview be direct evidence of age discrimination?

Can you look to hire a younger guy with fresh ideas?

Is your Florida company hiring Millennials? You may get sued for age discrimination!

Stay away from the Three Os: Orientals, Old People and Ovaries

Can I be concerned that an applicant might be nearing retirement?

The 60 year-old employee was terminated in the summer of 2018, being told that she was being terminated because of “lack of performance” but did not identify any specific performance issues. About one month prior to her termination, during a one-on-one meeting with her supervisor, he did not raise any performance issues. After her termination, the company President announced to the employees of the office that she was no longer working for the company, stating that the industry “is changing” and that the company is shifting to adapt to the changes, which includes hiring “different types of talent.”

In October 2018, the 60 year-old terminated employee sued her employer, alleging age discrimination. Hernandez v. Landor Associates Int’l, Ltd., 159194/2018, Supreme Court of New York, 2018.

When a new CEO took over, she emphasized a vision for “digital transformation.”

The 60 year-old Executive Director noticed that the company was systematically eliminating older employees from employment, and during a one year period, the company terminated at least six employees who are fifty years old, or older

Since the 60 year-old employee was excluded from pitch teams, her opportunities to later work for those clients were eliminated. When she questioned a pitch team leader about her removal from the pitch team, he asked if she would like to be the “hostess” at the meeting. This resulted in about 80% of the employees at one office location classifiable as millennials or digital natives, i.e., below the age of forty.

The older employer surmised that her employer was especially likely to choose younger, less experienced employees over her for new business pitch meetings when the client’s target customers were expected to be digital natives. She felt that she was overlooked for these meetings despite the fact that her work on other projects, demonstrated her deep understanding of the millennial digital native audience.

When preparing for one pitch, senior management stated that the company wanted to “stack the pitch team with millennials.” At one company meeting, the company president remarked that the having millennials represent the company during a sales pitch showcased the company’s digital prowess, and that “digitally savvy” was an essential requirement for new hires. The company president also regularly said at various meetings that he wanted more employees who were digital natives and had “digital mindsets.”

Is it illegal age discrimination when a company desires to hire digital natives and overlooks older employees for the digital savvy employees?

A 60 year-old woman with three decades of industry experience believed that she may be the victim of age discrimination. Specifically, she believed that employees in their twenties and thirties were favored, as they were perceived to be “digital natives,” and therefore more adept at marketing to a target audience.

Company wanting digital natives = age discrimination?

Law Office of David Miklas, P.A.

Labor & Employment law - Employers only

She had climbed the corporate ladder to an Executive Director position. Her background included being recruited by Microsoft Corporation. She had a history of receiving performance-based bonuses and she successfully met or exceeded all of the performance goals and objectives her employer had established. For example, she exceeded the company’s revenue goal by 12%.

The employee believed that the senior management regularly overlooked her and instead gave opportunities to younger employees. For example, the company President and a Managing Director repeatedly invited younger employees to participate in new business pitch meetings, despite the fact that the older female employee had more experience than they did. She believed that the more junior employees were chosen to participate in new business pitch meetings because they were millennials, and therefore considered to be “digital natives.” That term describes someone under the age of forty or who became an adult around 2000.

She claimed that the company website is peppered with terminology describing the company as “agile” and “nimble.” She used language and images on the website against the employer. She argued that the website emphasizes “building flexibility and adaptability” and the need to “thrive on change,” and also boasts of “pruning the things you want to get rid of.” She also alleged that the photos on the website include visibly young people in the workplace. She argued that the company’s “messaging is clear: age matters.”

Although she believes that she is digitally savvy, an alumnus of Microsoft and other technology companies, and a successful executive at the company that fired her, at sixty years of age, she was incompatible with the youthful image that the company wanted to convey to the clients they were pitching. She claims that her exclusion from pitches to clients and her subsequent termination in the summer of 2018 was a result of flat out age discrimination. As a sixty-year old woman, she did not fit the profile of a "digital native."

This recent lawsuit is part of a trend of suing companies who appear to be pushing out older employees, making room for younger, Millennials. This case is similar to a lawsuit against Delta Airlines in which the company president specifically wanted the company employees to mirror the target customers, which were Millennials. This is a very dangerous way to run a business and can result in a Florida company being sued for violating the Americans with Disabilities Act.

If you need any assistance in handling age discrimination matters or issues dealing with hiring older workers concerning your Florida business, please promptly email the Law Office of David Miklas, P.A. or call us at 1-772-465-5111.

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