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Is “digital native” code for young?

Fortune Magazine recently ran an article that explored a trend in the tech industry of job postings that say the companies prefer applicants who are “digital natives.” Education consultant Marc Prensky coined the term “digital native” in an article that he published in 2001 called Digital Natives, Digital Immigrants. What people mean when they use the term “digital native” is ambiguous but, essentially, it seems to refer to a person who has been immersed in digital technology for a large portion of her life.

Since digital technology only first started to become commonplace in the 1990s, employers are probably less likely to believe that people born in the 1950s, 60s, or 70s are digital natives. Thus, some argue that when an employer says it wants to hire a digital native, the employer is implicitly signaling that it does not want to hire older workers.

The federal Age Discrimination in Employment Act (ADEA) and the Maine Human Rights Act (MHRA) both prohibit age discrimination. Would an employer’s use of the term “digital native” in a job posting be enough evidence to prove that it discriminated against older applicants in violation of the ADEA or MHRA? As the Fortune article indicates, many employment law experts are uneasy with the term digital native but they do not think an older worker could prevail in a lawsuit with that sole piece of evidence. However, if you are an older worker who unsuccessfully applied for a job where the employer said that it wanted a “digital native,” you should seriously consider contacting an experienced employment lawyer to determine whether it would be worthwhile to further explore whether there is other evidence of age discrimination.

Of course, it would be easy to prove age discrimination if the hiring manager just came out and said that he was looking to hire someone young but managers—who are usually aware of age discrimination laws—usually know better than to admit this. So, age discrimination is often proven with indirect or circumstantial evidence, like the use of the term “digital native” in a job posting along with other signs of age discrimination. Other signs of age discrimination include, but are not limited to, the following: if the hiring manager asked you for your date of birth even though she knew you were older than 18; you were more qualified than younger applicants that the employer hired; there was a statistically significant difference between the ages of the applicants hired and not hired; or the employer had recently discriminated against older employees, such as in a layoff.

The Maine Employee Rights Group has represented many workers in age discrimination cases.  Age discrimination is a serious problem and has, among other things, wrecked the careers and ruined the retirement plans of many people. If you believe you have experienced age discrimination, please contact us to learn more about your rights and whether they may have been violated.