Tech Startups: 'Digital Sweatshop With Snacks'?

Four takeaways about age discrimination, from employment lawyer Richard B. Cohen.

office cubicles digital sweatshop tech technology workers dronesQ: “I am a new supervisor working for a growing tech startup, and we have been discussing hiring plans for 2017. It’s a fun but demanding environment. My manager describes our ideal new hires as ‘young, bright, high energy, etc.’ She keeps repeating that she does not want to hire anyone over 40 because they are on the ‘back nine’ of a career. She has directed me to exclude candidates of a certain age. Isn’t this illegal?”

The question quoted above was likely a hypothetical, but it was purportedly posed to Boston Globe reporter Pattie Hunt Sinacole, who responded by making the point, through the advice of a quoted lawyer, that, yes, this behavior is indeed illegal.

Softball question yes, but there are a few good takeaways, besides the fact that the manager is asking the “new supervisor” to violate every anti-discrimination law on the books relating to age, thereby exposing the startup company to enormous liability.

Takeaway Number 1: I’ve worked with a heckuva lot of tech startups, and they are notorious for being incubators of all manner of workplace discrimination and harassment claims – an employment lawyer’s dream! No surprise when you put just-out-of-school twenty-somethings together in a loose environment with no offices and where there typically are no established rules or codes of conduct or anti-harassment policies or trainings, or often even an HR person or department.

This hypo simply illustrates a typical startup scenario, which employment lawyers would consider disastrous.

Last April there was a great article by Dan Lyons in the New York Times in which he reported his experience working at a “hot” tech company. Employees were disposable, and firing was known as “graduation.” He called this business model a “digital sweatshop,” and agreed with me that it is also an invitation to employment discrimination and harassment.

Maybe call it a “digital sweatshop with snacks.”

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The lawyer quoted in the Globe article said, “Investing in training for managers in this area is a smart move and one that will protect against discriminatory decisions such as the one the manager in the question is about to make.”

Agreed. But more – much more – is needed.

Takeaway Number 2: “Anyone over 40 … [is] on the ‘back nine’ of a career.” This expression is a new one even for me, who collects and writes about workplace code words or other ways that people refer to older workers. “Back nine” is a good one!

In 2015, I wrote about a few years’ worth of such age cases and the language used. Employers take note!

“Perhaps some employers think that they can escape being caught discriminating against older people if they code their language. Or maybe they are just used to making ageist comments because they have, as the EEOC has said, ‘outdated prejudices and biases.’ Either way, these comments may be seen as code words, or perhaps in political parlance ‘dog-whistle’ expressions, which are designed to ‘convey a predetermined meaning to a receptive audience, while remaining inconspicuous to the uninitiated.’

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“For example, you do not call an employee ‘old’ or ‘ancient’ (I once had a case where the boss referred to another employee of the same age as the one he fired as “ancient”) since that is direct evidence of age discrimination. You stay away from calling an employee ‘old school,’ or ‘set in his ways,’ or ‘not a proper fit for the “new environment,’ or ‘lacking in energy.’ And, of yes, ‘Hang up your Superman Cape,’ and ‘get it together you f…. old people’ should also be avoided (although the latter remark can hardly be considered particularly well “coded”).” The same with ‘looks old,’ ‘sounds old on the telephone,’ and is ‘like a bag of bones.’”

Takeaway Number 3: Older workers have been shown repeatedly to be, while no longer young, nevertheless “bright, high energy,” knowledgeable, productive – and highly profitable employees. An “ideal” hire is someone who can do the job well – and older employees have been proven to do just that.

A few months ago, a Phoenix EEOC Regional Attorney said the same thing: “Research shows that pervasive stereotypes about older workers still persist – for example, there are widespread stereotypes that older workers are less motivated, flexible, or trusting and that a younger workforce is preferable. These stereotypes are flatly untrue and must be recognized for what they are – prejudice and false assumptions.”

Ashton Applewhite, author of “This Chair Rocks: A Manifesto Against Ageism,” wrote recently in the New York Times:

In 2016, almost 20 percent of Americans 65 and older are working. … These older people represent a vast well of productive and creative potential. Veteran workers can bring deep knowledge to the table, as well as well-honed interpersonal skills, better judgment than the less experienced and a more balanced perspective. … Why, then, are well over a million and a half Americans over 50, people with decades of life ahead of them, unable to find work? … The problem is ageism … [a] dumb and destructive obsession with youth so extreme that experience has become a liability.

If you are an employer, don’t let false and outdated myths and stereotypes – which is what they are – stop you from doing the right thing and benefitting greatly from it.

Takeaway Number 4: The Globe reporter began her response to the “questioner” by saying, “You have been placed in a difficult position.”

Agreed. No one wants to be asked to do the wrong thing, or perform an illegal act. But being ordered to do so is no excuse — you still must do the right and legal thing. And keep in mind that anyone who experiences or is a witness to workplace discrimination or harassment and complains to management (or a company-designated EEO officer) is protected by the anti-retaliation provisions of the relevant statutes.

Final Takeaway: All of us will get old one day, God willing.

Even you!


richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.