Is it discriminatory to put "bonus" video game skills in a job advertisement?

Question

My employer (a small company) is hiring an IT person. The person hiring and writing the job ad loves SNES video games and grew up around that time.

The job ad for the IT person has a section for "bonus skills" that includes sentences about the person's skill level about specific SNES video games. I challenged this person and said it could easily be interpreted as age or "geek" discrimination (especially considering that the ad is for an IT person). They say it's meant to be humor fun/wink and I'm overreacting but they've also told me the exact person that they'd hire if we ever had the money (and this person fits this "culture" description exactly).

The rest of the job ad is very normal and what you'd expect. I think these couple of lines taint an otherwise well written job ad.

Am I wrong in thinking this is unnecessary and could be perceived as discriminatory?

Answer 1

Is this discriminatory? No, probably not. Is it inappropriate to put in a job ad? Yes, most definitely.

First, I'm going to assume that your colleague just wants to include the "bonus" section for flavor and doesn't actually want to judge hiring based on SNES skills, because to do so would just be moronic.

Second, unless you are hiring a video game tester, having a section on video game skills just doesn't make any sense and will only confuse your potential candidates. Most people looking at the ad will spend a minute or two trying to figure out how serious that section is. And if they determine it's not serious, then they'll have to figure out if there's any other parts of the advertisement that weren't meant to be serious. It makes it difficult to figure out what you really want from a candidate, which also makes it hard for recruiters to figure out who to send your way.

Third, it looks unprofessional. If I saw that in a job ad I'd figure the company was a startup made by some college buddies and not someplace I'd really want to depend on a paycheck from. But maybe you have a really laid-back culture like that and you want to put that out there from the beginning. Just know that you'll eliminate a lot of prospects because of it.

Back to your original question though, I wouldn't worry about discrimination. There's no such thing as "geek discrimination," and this wouldn't qualify as age discrimination since someone of any age can be a fan of SNES games.

Answer 2

Suppose the hiring manager was a woman and she announced that she thought the ideal candidate for the IT role was someone who had worked needlepoint as a hobby. Oh, and scrapbooked. It would fit the "corporate culture" she was trying to create. And she'd done those things herself as a younger person and felt that they contribute greatly to the person she is, and the workplace skills she has.

Discriminatory? She assures you she'd be happy to hire a man who had done these things!

But of course it's discriminatory. Any selection criteria, which is not in-and-of itself a bona fide job requirement but which correlates with gender, age or culture is systemically discriminatory.

So if you're hiring a programmer, or accountant, or truck driver, you can't say you want someone who's played college football any more than you can prefer a former cheerleader.

Corporate culture can't be an excuse for discrimination. It can be a form of discrimination, if the corporate culture is inherently discriminatory--if it can't work with women, or people of different cultures, or different religions.

Your hiring manager has confused a place of employment with a private club. He's welcome to start an SNES society that meets in his man cave at home, but as an employer he's got to play by the rules. Your company needs to do itself a big favour and retain the services of a good HR consultant to vet their hiring process.

Answer 3

No discrimination.
Yes, you're overreacting.

...and you diminish a very important protection mechanism with banal nonsense !

In fact employers are free to chose their employees' suitable qualifications and personalities as they please and they deem fitting into their company.

Discrimination is to reject because of race, gender, religion, age etc.

Check antidiscrimination laws in your country, you won't find video games in the list...

I do agree though, it is not the smartest decision to include that.
It's not even required for the job, just for the one hiring to have someone like minded to hang out with.
One could argue however it is to build a certain company climate, which is fine to do nonetheless.

EDIT:
I don't see the post age discriminatory either.

A) growing up around the times of SNES is just a BONUS
B) hiring someone for example in a senior capacity with X years experience, thus excluding a certain age group (young), is perfectly legal and not discrimination at all.

Age discrimination would be if a young and old person fit the job description criteria and they hire the young person, "because young".

Please check the following U.S. law for further details: https://www.dol.gov/general/topic/discrimination/agedisc

Big thanks to Richard U for providing the link!

§623. Prohibition of age discrimination
(a) Employer practices
It shall be unlawful for an employer—

(1) to fail or refuse to hire [...] any individual[...]because of such individual's age;

(f) Lawful practices; age an occupational qualification; other reasonable factors; laws of foreign workplace;
seniority system; employee benefit plans; discharge or discipline for good cause
It shall not be unlawful [...]—

(1) to take any action otherwise prohibited[...] where age is a bona fide occupational qualification reasonably necessary to the normal operation[...] or where the differentiation is based on reasonable factors other than age[...] or where such practices involve an employee in a workplace in a foreign country, and compliance [...]would cause[...]to violate the laws of the country in which such workplace is located;

Keep in mind, other countries will have different laws...

Answer 4

Am I wrong in thinking this is unnecessary and could be perceived as discriminatory?

Anything can be perceived as discriminatory. But only a lawsuit would determine if it is actually discriminatory or not and that's unlikely to happen.

It is completely unnecessary. Not a smart way to advertise for help, IMHO.

It's clear you have a reasonable worry, since ads which are designed to deter older people from applying might be deemed discriminatory: https://www.bizfilings.com/toolkit/research-topics/office-hr/case-studies-of-age-discrimination-in-job-ads

But, practically speaking, it's extremely unlikely to ever get that far. Try not to worry.

Unless you are this person's boss, or unless you are the hiring manager, there's not much you can do. There are a lot of stupid job ads out there. Maybe after a few interviews, they will realize that the ad isn't attracting the right kind of candidate. Maybe not. They may well get a "personality" out of this ad. Hopefully, you get a good worker too.

Answer 5

This answer expands on CCTO's answer by discussing some relevant data and more details about the law.

Is it discriminatory to advertise a preference for retro gamers

Not having experience or familiarity with retro gaming is not a protected class, but it may very well be associated with a protected class. When an action in hiring or promotion has the effect of discriminating against a protected class, it is considered disparate impact discrimination, whether it is intentional or not. This may not be something you agree with, but it is well established in case law in the US (see earlier link).

I don't have good data on the demographics of SNES users, but Nintendo has published data on the demographics of Nintendo switch users, or more specifically, the gender and age of the people for whom a Nintendo switch was bought. They are 86% male, and 97% under 45. Older age is a protected class, and sex is a protected class. In both cases, the demographic differences meet the 4/5ths standard used to determine whether a policy or screening tool has disparate impact.

It may be the case that the demographics of the SNES are different enough, that posting a hiring preference for SNES gamers would not meet the 4/5ths standard. If you have that data, you may be in the clear. A good lawyer may also be able to defend against a claim of disparate impact with a "legitimate business interest" argument. All that being said why would you want to include this in your posting if you would need a good lawyer to successfully defend against it? It sounds like the person who wrote the post feels protective of what s/he wrote, enjoys being able to include his/her personal style and humor in the posting, and is sensitive to criticism. That's not a good reason to put your company at risk of an employment discrimination action.

Answer 6

In the U.K. age is a protected characteristic and Indirect discrimination includes a policy, practice or rule which applies to everybody in the same way but which places people who share the protected characteristic at a disadvantage when the person applying the policy, practice or rule can’t show there’s a good enough reason for it.

So, in this situation, the job advert is making it clear that the person hiring has a preference for someone with a certain skill which is unrelated to the job, but which will most likely indirectly exclude people younger or older than a specific age range.

Thus, in the U.K. there would be an argument that this could be considered discriminatory, and I would certainly suggest to the hirer to get advice from HR or possibly even get legal advice before proceeding.

At the very least, this sort of thing is likely to cut down on the pool of applicants. This may be what you want, but there are many ways of thinning the herd that would not open your company to a discrimination charge.

Answer 7

The job ad for the IT person has a section for "bonus skills" that includes sentences about the person's skill level about specific SNES video games. I challenged this person and said it could easily be interpreted as age or "geek" discrimination (especially considering that the ad is for an IT person).

I disagree with a lot of the other answers here - I think there is a possible discrimination issue here.

Australian law recognises a concept of indirect discrimination:

Indirect discrimination occurs when there is an unreasonable rule or policy that is the same for everyone but has an unfair effect on people who share a particular attribute. ... Example: It could be indirect disability discrimination if the only way to enter a public building is by a set of stairs because people with disabilities who use wheelchairs would be unable to enter the building.

I understand other countries including UK and USA have similar laws.

There are many physical and/or neurological conditions that make it hard or impossible for people to play certain video games. If your company was serious about this preference for SNES skills, it seems like a textbook example of indirect discrimination on grounds of disability, which is a protected attribute in most places. (It might also be argued as indirect age discrimination, but that's a weaker one.)

If somebody chose to make an issue of this, you would need to convince the courts that this wasn't intended seriously and wasn't actually applied in the selection process. That might be difficult, especially if you end up going with somebody who does have wizard skills at SNES.

Answer 8

It is quite obviously discrimination. It is also quite obviously not illegal discrimination. On the third hand, you will be losing out on some good candidates.

You may reject a candidate who hasn't grown up playing these games (but may be willing to accept candidates who refused to grow up while playing these games). And candidates of all ages will think that your advert is rather childish and ignore you.

Answer 9

No, this is not discrimination, and confronting someone over what amounts to nothing more than an impish rider to a job ad is not going to be well received.

As someone with disabilities who has suffered actual discrimination, I find such trivializing of a real problem in the workplace highly irritating. If I were at your company I would ask people to seriously reconsider what your future with the company would be from that point, and have HR flag you as a potential troublemaker.

I say this not to berate you, but to show you how badly an overreaction could harm YOUR career by triggering a backlash.

Right now, there are articles in the news every single day about someone doing something as an overreaction. The principal disciplined for banning candy canes, among others comes to mind. An accusation of discrimination can ruin someone's career, and as such, the blowback from a false one can have a similar effect.

In short, never confront someone about discrimination unless you're sure, and you've got proof, or it could end badly for you.

That said:

The Age Discrimination in Employment Act of 1967 (ADEA) protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment. The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC).

So, no, not by any legal definition is it age discrimination.

For reference:

https://www.bizfilings.com/toolkit/research-topics/office-hr/case-studies-of-age-discrimination-in-job-ads

Thanks to Joe Strazzere for providing that link.

Answer 10

The Better Allies newsletter from last week had a section devoted to exactly this issue:

4 Cast a wider net when hiring

You’ve probably heard about a now-famous internal Hewlett-Packard study that found that women applied for a promotion only when they believed they met 100 percent of the qualifications listed for the job, while men applied when they thought they could meet 60 percent of the job requirements. And HP’s findings have been validated by other research.

So, if a strong candidate came along with only two years experience working with Java, would you hire them even if your job posting says you require three to five years? If your answer is yes, you shouldn’t list a required number of years at all. Likewise, cut the “nice to have” and “preferred” requirements unless you truly need this experience (in which case, call them out as “full” requirements).

Other answers wade into the debate about whether this constitutes discrimination, so I won't go there. I will reiterate the implication of this article that including "nice to have" requirements, especially "joke" ones that are culturally-based, will only ever serve one purpose: weakening your candidate pool by causing otherwise fully-qualified candidates to hesitate about applying.

Answer 11

1) "Bonus" qualifications are just that, "bonus". If you have those qualifications, then you are looked on as a better candidate. It's like "We want a Java developer, bonus if you also know Angular".

2) Not being familiar with SNES games is not any more age discriminatory than not being familiar with COBOL or FORTRAN or BASIC. Replace SNES with COBOL on the JD and see if it still feels discriminatory. If not, then it's not discriminatory (in the "can I be sued for this" sense, although it may be discriminatory in other ways). IANAL but I feel sufficiently confident saying this.

3) It might not be appropriate to have on a JD though, because it makes the company feel a bit unprofessional. Like, "if I work for this company, am I going to have my salary capped based on how good I am at Mortal Kombat?" It might be something to come up in the interview, if such a conversation can easily be raised without feeling awkward.

tl;dr: You are not wrong in thinking it is unnecessary. You are wrong in thinking it would be perceived as discriminatory by a reasonable applicant (although this is somewhat opinion). If I was the HR manager, I would not want to hire someone who would perceive such a thing as discriminatory; such a person would not be a good culture fit at a company I was in charge of.

Answer 12

So many answers are going straight in at the deep end with what I'd say was incomplete information.

Phrasing matters a heck of a lot with this and your question doesn't include the actual wording that I can see.

Is it literally asking about people's SNES Skill level?
Eg: "What's your fastest Mario-Kart time on the SNES?"
Or is it written as "Write here about your bonus skills: eg your Mad Skillz at Mario-Kart on the SNES".

The first is meaningless drivel that would exclude everyone who hadn't played the specific game, the second is just an example for which you can write practically anything and it's a chance to talk about something that excites you.

Getting potential employees to talk about something that excites them, like personal projects or really anything else during an interview is a time-honoured tactic for getting some idea of whether they'll be a good personality/culture fit for the team.

As long as this question in the advert is phrased loosely enough to allow that, I'd say it was perfectly reasonable to include it.

Answer 13

Both age and sex are protected characteristics in the UK under the Equality Act so if an applicant could show this encouraged applications from applicants of a certain sex or age range, or that the employer was selecting on these characteristics, and the employer was unable to prove such a person would be better able to do the job, in my opinion this would likely be unlawful.

I am not a solicitor but have some experience of employment law.

Answer 14

There are two main criteria in hiring a new employee (especially with a smaller company):

• Work skills (can they actually do the work)
• Culture fit (do you actually want to spend 8 hours a day with them)

If two people with the same skillset applied for the job, and one person got on really well with the team, but the other person was far more alien in terms of their interests/social interaction/perspective, which would you hire?

So the hiring manager puts a quirky request in the bonus section. It's "bonus" because it's not an enforced requirement, but it indicates to candidates the kind of culture in that team—so both candidates and the employer can start to have an idea of whether there is a good culture fit.

---

Edit

If the problem is that only the hiring manager has that video game culture, and not the rest of the company, then I would say the hiring person isn't "discriminatory" but just misrepresenting the company culture.

The difference is that discrimination means that man should be fired and/or arrested, but misrepresenting the company simply means you may not end up hiring the best person for the team (because who you are aiming for and who you need are two different kinds of people).

Answer 15

The person hiring and writing the job ad loves SNES video games and grew up around that time.

It's hard to tell if this same person is also running your team. From what I gather this person's job is to interview and hire talent.

With that said, can you bring it up to your team's lead? Also, in your day to day job, are you or coworkers playing SNES games? So it's misleading if no one except this person is playing or into SNES.

If the person doing the job ad is also your team's lead, I would bring up that this could lead to potential conflict especially if he's friendly on the ground that the person is into SNES games. I had coworkers in the past who got friendly with the boss by playing online games for hours. Things went south when the boss and coworker had a conflict and discipline had to be done. It caused a fallout.