Berkeley Journal of Employment and Labor Law
Berkeley J. Emp. & Lab. L.
This Article explores how platforms in the workplace (both social media and hiring platforms) might enable, facilitate, or contribute to age discrimination in employment. The Article starts with evidence of age discrimination on work platforms particularly with regard to design elements, such as the availability of age-related proxies. The article then describes how these platforms use practices that redline, cull, or dissuade older job applicants. It then presents the challenging legal issues raised by the mediation of discriminatory employment practices by an information intermediary in the form of a platform, notably the problems of meeting the burden of proof and the assignation of liability. The Article then puts forth a three-part proposal to combat age discrimination in the face of platform authoritarianism. These proposals include: 1) reinforcement of the disparate impact cause of action for the Age Discrimination in Employment Act (ADEA) via codification; 2) education for employers regarding the use of ageist language in job ads; and 3) new EEOC guidelines for criteria documentation and data retention for job advertisement, recruitment, and hiring platforms.