Pam Boyer, a forty-year-old woman in Missouri, has commenced a lawsuit under the Misouri Human Rights Act against Mosaic Sales Solutions. Mosaic markets the Xbox and Xbox Connect by organizing demonstrations of the product. Boyer’s complaint alleges that Mosaic rescinded its offer of employment only after seeing a picture of her, in which her age is evident. Boyer further alleges that the employees responsible for hiring are specifically told to hire “young female” and “Generation Y” applicants, as they best “reflect the Kinect and Xbox image”. The story was first reported in The Court House Reporter on September 12^th, 2012 and since has been picked up by Gametrailers.com and Business Insider. Microsoft was not named in the lawsuit.

Section 213.005 of the Missouri Human Rights Act prohibits employers from discriminating in their hiring choices on the basis of several categories, one of which is age. The Missouri Court of Appeals, Western District has held that, in order to win this case it must be proven that age was a contributing factor in the employment decision. Thomas v. McKeever’s Enterprises Inc.,2012 WL 4771364 (Mo.App. W.D.).

A factual argument, which may be offered by Mosaic in an attempt to sway the court to make an exception to the MHRA, is that as a marketing company they must be allowed to hire those demonstrators who will best sell the product. Given the allegations in the complaint, Mosaic seems to think that it is only served by marketing to younger generations. This logic is inherently flawed.

The ever-expanding market for video games is currently broadening to include the older population. In fact, many companies like Nintendo and Internet gaming companies like Squidoo, have already targeted the rapidly growing market. Making it very clear that Mosaic’s allegedly discriminatory hiring practices favoring “generation Y” applicants is not a necessity of the business.

Fox News reports that The Entertainment Software Association has found that, 25% of current video gamers are 50+ in age. The same article recounts several stories of  people who are aging with their video games (those who were 18 years old when the first version of the Atari was released in 1972 are now 58 years old). One of these people is 70-year old Barbra Sainte-Hilaire, who has her own videogame blog and is a “senior” video game correspondent for MTV. At the extreme end of the gamer scale, she plays 10 hours of games per day. Another popular video game activity in the senior community is Nintendo Wii bowling at nursing homes.

The positive effect that video games have on the health and activity level of seniors is well documented and thoroughly explained by numerous authorities. Both WebMD and Time Magazines, Health section have extensive explanations of studies that have been done or are being done to fully realize the extent that videogames may positively impact the elderly population.

With the number of successful marketing campaigns, and the money being poured into research on video games for the elderly population, Mosaic’s marketing scheme that purports only young applicant’s can “reflect the Kinect and Xbox image”, is not likely to be accepted by the court in the age-discrimination suit before them.