At the 2007 Y Combinator Startup School at Stanford University, Mark Zuckerberg shared his opinion on hiring at Facebook Inc. to a crowd of aspiring entrepreneurs. Not yet the household name he is today, Zuckerberg explained the importance of being young and technical, and that any company aiming to be successful should only hire young people with technical expertise.

Why, you ask? Because in Zuckerberg's opinion, "Young people are just smarter." As the CEO of a Fortune 500 company, the Mark Zuckerberg of today would likely shy away from his comments from 2007 due to their impact in today's legal landscape where age discrimination claims are on the rise.

Unfortunately, Zuckerberg's hiring philosophy may still exist in Silicon Valley as tech companies want to tap into a workforce that is technologically inclined, more likely to take risks, and has fewer obligations outside of the office that will cut into productivity. As a result, employers in the tech sector must be aware of the potential for claims of alleged age discrimination. For example, claimed incidents of age discrimination at many tech heavyweights have appeared in recent headlines:

  • In 2016, the EEOC investigated Intel as a company restructure resulted in approximately 12,000 layoffs. The median age of workers laid off was reported at 49 — seven years older than the median age of the remaining staff members.
  • In late 2018, Google settled a class action of approximately 260 class members that alleged a systematic practice of discrimination against individuals 40 and older. Class representatives argued that Google overlooked pertinent job qualifications to hire younger workers with less experience.

If these cases are an indication of the employment climate in tech, then not much has changed in the 12 years since Zuckerberg's comments. Yet, if tech companies continue to view older workers as undesirable whose experience adds little value, then they run the risk of potentially drawing claims under both federal and California law.

The Age Discrimination in Employment Act (ADEA) and California's Fair Employment and Housing Act (FEHA) protect workers and job applicants from discrimination based on age. The ADEA prohibits employers with at least 20 employees from discriminating against employees aged 40 or older. Meanwhile, FEHA protects workers aged 40 or older from discrimination in the workplace if the employer has at least five employees. If an employee successfully proves age discrimination, both laws provide for hefty damages including back pay, liquidated damages, job reinstatement, attorney's fees and costs.

When damages available to workers under the ADEA and FEHA are combined with the costs associated with defending a company and the potential for negative publicity, companies face significant financial and social losses from a claim of age discrimination. Therefore, companies should do everything in their power to steer clear of employment and recruitment practices that can be perceived as discriminatory toward older workers and applicants.

A well-written Anti-Discrimination Policy with the goal of maintaining a diverse workforce is an important component of preventing and defending against age discrimination suits. Through enforcement of its Anti-Discrimination Policy, companies can discipline employees who comment on another employee's age or the use of stereotypes associated with older workers. During recruitment, employers can limit inquiry to an applicant's relevant work experience rather than focus on unnecessary information that may reveal an applicant's age. By cutting down on the disclosure of irrelevant information, a company can ensure it hires the most talented employees from a pool of candidates, regardless of their age.

The bottom line is that tech companies should utilize employment practices that are applied evenhandedly to ensure that older employees and applicants are not impacted differently than others. This may be counter to Mark Zuckerberg's advice from 2007, but unless responding to allegations of age discrimination is part of your business plan, then hiring only young people with technical expertise is generally not recommended.

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