For anyone seeking new employment, his or her daily routine likely includes scouring Internet job sites and submitting online applications. On the surface, this seems like a very transparent and objective process that puts all applicants on a level playing field where only experience and qualifications count.
If only that were the case.
As it turns out, discrimination is alive and well in the world of online job-hunting. It may even be harder for some people to find work this way than by submitting a paper resume that’s reviewed by an actual human.
This is particularly true for older workers because age discrimination seems to be baked right into many online job sites.
Visible Age Discrimination Persists on Internet Job Sites
You don’t have to look too closely at many online job sites to find visible evidence of possible age discrimination. This goes far beyond problematic language in job descriptions that ask for applicants who are “digital natives,” for example – meaning younger job-seekers who grew up using the Internet and technology as part of their daily lives. Many of these sites are actually set up with barriers that block older workers from even submitting applications.
For example, some online job application forms have a field requesting an applicant’s birthdate or date(s) of graduation. This can be a problem if the form uses menus that only allow dates within a certain range to be selected. It might just not be an option to choose a birth year before 1980, for example. If this is a required field then the applicant will not be able to complete any application on the job site. They are effectively blocked from applying for jobs.
Asking for information that pinpoints an applicant’s age is also highly problematic in the first place. The request likely violates the Age Discrimination in Employment Act (ADEA), which generally prohibits asking such questions. Some states are contemplating legislation that would ban making any questions about age a required field on online job applications.
The Hidden Menace of Age Discrimination by Algorithm
While discriminatory, at least ad language and required age fields are visible and can be challenged. Unfortunately, there are far more insidious – and hidden – ways in which online job sites actively discriminate against older workers. Even worse, these applicants may not even know age discrimination is the reason they didn’t get a job.
A recent study showed that 72% of online job applications are weeded out before a living, breathing human being ever sees them. This is done through sophisticated algorithms that are supposed to make it easier for employers to find qualified applicants. Unfortunately, these algorithms are not neutral. Humans after all, program them, and that programming may result in inadvertent discrimination based on inaccurate assumptions. Employers can also use those algorithms to specifically discard applications based on age — a decision that is entirely concealed from applicants.
A case involving this very issue recently went as far as the U.S. Supreme Court. Though the court declined to hear the case, it provides a textbook example of how algorithms can result in hidden age discrimination.
The lawsuit was brought by Richard Villarreal against R.J. Reynolds Tobacco. He had applied online in 2007 for a job with the company but did not receive a response. He tried again several times over the next few years with the same result. In 2010, a whistleblower at R.J. Reynolds accused the company of screening out online applicants based on age without disclosing this to any of the rejected candidates. Villareal sued R.J. Reynolds, alleging this practice violated the ADEA.
Villarreal’s lawsuit highlights the damaging effect that online job sites can have on the employment prospects of older workers. It is even more troubling that this blatant discrimination can go on undetected, making it hard for an applicant to prove a rejection was due to age.
Both the courts and Congress should address this glaring gap in the protections offered older workers by the ADEA. Existing law must keep pace with the realities of evolving technology.
If you feel you have been denied a job or promotion because of how old you are, or have experienced other age-based discrimination, the lawyers in the Sommers Schwartz Employment Litigation Group would be happy to discuss your situation. Please get in touch.
Tad T. Roumayah
Tad Roumayah focuses his practice primarily on employment litigation, representing employees who have encountered discrimination, retaliation, wrongful discharge, whistleblower protection claims, wage and hour violations and other employment issues and disputes.
