How evidence of an employer’s own interview documents can keep a retaliation lawsuit alive
Stay away from the Three Os: Orientals, Old People and Ovaries
Should I be concerned that an applicant might be nearing retirement?
Many businesses in Florida run an advertisement on Facebook when they are looking to hire for a position. It can be an inexpensive platform for exposure. However, if your Florida company runs Facebook ads for recruiting, those ads can be used as evidence that your company is engaging in age discrimination in Florida. You may not even realize that your Florida business is doing this if you use an employment agency to help with hiring or recruiting.
How can my Florida business be discriminating against older workers when we run a Facebook ad?
Facebook’s ad manager does not warn Florida businesses that by limiting their ads to certain age groups, they may be subject to age discrimination lawsuits. In fact, the Facebook platform may actually send the message that the target audience is good, using such terms as “good job!”
When selecting the population of Facebook users who will receive employment ads, Florida employers and employment agencies routinely focus their ads on prospective applicants who are in age bands that exclude many workers who are 40-years-old or greater, e.g., workers who are “ages 18 to 38,” “ages 22 to 45,” or “ages 21 to 55,” thereby preventing older workers from receiving advertising and recruitment for job opportunities.
Can Facebook recruiting ads get my business sued for age discrimination?
The lawsuit also claims that these practices make older workers’ job searches take far longer than they should.
The lawyers who filed this lawsuit are arguing that for the positions advertised, these age-based restrictions show that the selections for these positions are uniformly motivated by discriminatory animus against older workers.
The theory is as follows:
Recently a lawsuit was filed alleging that companies (large and small) that conduct this type of job recruitment are engaging in a pattern or practice of discrimination that denies job opportunities to individuals who are searching for and interested in jobs, reduces the number of older workers who apply for jobs with the offending employers and employment agencies, and depresses the number of older workers who are hired by such employers and employment agencies, causing older workers to lose out on a job. CWA, et al. v. T-Mobile US, Inc., Amazin.com, Inc., et al., Case 5:17-cv-07232 (N.D. Cal. 2017).
In this lawsuit, the Plaintiffs seek an injunction to stop the companies from engaging in unlawful age discrimination in employment, as well as other forms of relief for older workers who have been denied job opportunities due to the unlawful and harmful practices.
According to the lawsuit, “this case reveals that age discrimination remains an entrenched facet of the American workplace… large and small employers alike apparently believe that it is appropriate and desirable to exclude American workers from job opportunities solely based on their age.”
The likely argument that will be made to the jury in this type of case will be:
In every corner of Florida, when an older worker loses her job at a a call center, a hospital, or an office, and she looks for a new job using the internet and social media to find job opportunities, she likely has no idea that Florida companies are purposely refusing to tell her about the next job opportunity that may help her feed her family or make her next mortgage payment to stave off a devastating foreclosure. Due to this lawsuit, older workers may finally understand why their job searches—that have migrated online in recent years—are more difficult than they ought to be.
Readers of this newsletter may recall a recent article asking, Can seeking “digital natives” in job ad get me sued? These questions are on the cutting edge of age discrimination law in Florida. Florida employers are reminded that we warned that the reason that it can be a legal problem to run an ad for a “digital native” is because it can be used as evidence of age discrimination. 2017 was the 50-th anniversary of the Age Discrimination in Employment Act (ADEA) so age discrimination is a hot topic right now. The EEOC is very focused on age discrimination, and they most likely will be excited to pursue an investigation where an older worker was not hired and there was evidence that the Florida business used the term “digital native.”
In Florida, the EEOC will investigate ADEA claims if the Florida company has 20 or more employees who worked for the company for at least twenty calendar weeks (in this year or last).
Florida businesses should recall that one of the six priorities in the EEOC’s Strategic Enforcement Plan for the next five years is to eliminate barriers in recruitment and hiring.
If you need any assistance in handling age discrimination matters or issues dealing with hiring older workers concerning your Florida business, please promptly email or call the Law Office of David Miklas, P.A. at 1-772-465-5111.
You can read more of our employment law articles on our legal updates page.
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This lawsuit should be a wake-up call to Florida businesses of all size. It is believed that this advertising practice is systemic in the American economy. Florida HR directors and business owners should verify that they are not the next target for this type of age discrimination claim. Will a Florida lawyer be able to claim that your company eliminates older workers from receiving job ads by specifically targeting their employment ads to younger workers via Facebook’s ad platform?
Two examples listed in the lawsuit are as follows: