By: Robert C. Hackney
Are you hiring? Are you looking for that eager beaver with the fresh face? Need a “digital native” or a “ninja?” Think again, and don’t even consider using those words in a job posting.
The purpose of this article is to try to keep you, the business owner, from getting sued for age discrimination, particularly for something that you might do unintentionally.
Age discrimination is alive and well in America. As we all know, there are many forms of illegal discrimination: race, disability, ethnicity, color, gender, sex, (including gender identity, sexual orientation, and pregnancy), country of national origin or birthplace, religion and of course, age. What most people don’t realize is that age is one of the most common types of discrimination accounting for over 20% of all discrimination cases. So, if you are hiring, and you think you have a preference for the younger crowd, you are a potential target.
Age is one of those insidious types of discrimination. If someone is discriminated against on the basis of race or religion, for example, people are appalled. Not so much for age. People snicker at comments like “old goat” but nobody is very seriously offended. (Except maybe the old goat).
Most of the time, age discrimination is not intentional. It is frequently not a conscious choice. It can be based on misperceptions and attitudes that are old, learned behavior. Today at age 65 many Americans are in better physical condition than their parents were at 45. During their lifetime they have exercised more, smoked less and probably drank less alcohol. With 77 million Baby Boomers (ages 54 to 72) and 65 million Generation X individuals (ages 36 to 53) there are a lot of people who will remain in the workforce. By contrast, Americans who fought in World War II were frequently anxious to retire, while Baby Boomers and Gen Xers don’t seem as interested.
The fact is that Americans today are planning to work longer than any generation before them. Take for example one of my relatives, age 86. Retire he asks? What for? What the hell would I do all day?
Although research studies show that age does not relate when it comes to ability or performance, the stereotype persists. Are you over 50? Sorry, not much opportunity. Over 60 or 65? Forget about it. You are not getting hired, except maybe bagging groceries at the supermarket.
Before we get to the questions that you should never ask, here is some background to help you understand the potential dilemma.
Federal Law
The main federal law involved is the Age Discrimination in Employment Act (“ADEA”). The ADEA is based on Title VII of the Civil Rights Act of 1964 and the Fair Labor Standards Act. The goal of the ADEA is to eliminate discrimination in the workplace. It has been in place for 50 years, and is a good example of how it is easy to change a law, but how hard it is to change attitudes. Since 1979, the ADEA has been administered by the U. S Equal Employment Opportunity Commission (“EEOC”). This law does not apply to every company, but typically only companies that have 20 or more employees. Don’t think you are in the clear because you only have less than 20 employees. Each state has their own version of discrimination laws, many based directly upon the ADEA, and most apply to much smaller companies, usually companies that employ four of more people. Check your state law, as there are 50 variations.
The Process
If someone believes that they have a discrimination claim, they start by filing a complaint with the EEOC. For example, someone thinks you have discriminated against them in an interview, and the job went to a younger person. The person has 180 days after the “adverse employment decision” to file an EEOC complaint (sometimes 300 days in certain circumstances). The EEOC will then begin their investigation. This, in and of itself, is a burden on the business. It frequently involves an in depth review of your company and your hiring practices. This investigation is time consuming, distracting to the business owner, and frequently expensive, as you will need to hire legal counsel to assist you at this point. The practice gives a serious advantage to the person who files the complaint, since the government is doing their background work for them for free. During this process it is incumbent upon you to convince the EEOC that you had some other reasonable basis to deny employment of this person, and that reason was not based upon their age.
After the EEOC investigation, they will usually issue a right-to-sue letter to the claimant. Strangely enough, they will even do that in cases where they have found “no probable cause.” Usually the EEOC will let the claimant have a copy of their investigative file to help them with their case.
Landmark Cases
There are two landmark cases in this area that merit a mention.
Smith v. City of Jackson was a 2005 Supreme Court decision that held that an employer can be liable under the ADEA for age discrimination unless the decision made by the employer was based upon “reasonable factors other than age.”
Meacham v. Knolls Atomic Power Laboratory was decided by the Supreme Court in 2008 and was focused on answering the question that went unanswered by Smith v. City of Jackson. That question is: who has the burden of proof when it comes to proving the exception for reasonable factors other than age? The Supreme Court ruled that the burden is on the employer. This gives a major advantage to an employee, who now only needs to allege the age discrimination and does not need to address whether or not there may have been other factors involved. The employer now must come forward and provide proof that there were other factors involved in the decision.
Help Wanted Ads
Its not just job interview questions that can get you in trouble. Advertising for open positions can be just as dangerous. If your advertisement indicates a preference for a certain age person, you have an ADEA problem. Think its smart to advertise for college students looking for a summer job? Be careful how you word the ad. Seeking recent college graduates? Think again on how to word that.
The recent buzz on age discrimination advertising has focused on Facebook. Recruiters like to use Facebook because its reach is massive, with over two billion users. Facebook is also one of the most sophisticated big data players, and is known for being able to target very specific audiences. Want to market to left handed guitar players in California? No problem, Facebook will be able to get your information right to them. Looking for people who buy a particular kind of wine and live in New York, Connecticut and New Jersey? No problem.
The problem with Facebook and age discrimination has focused on its ability to limit employment advertising to certain age groups. Facebook claims that age based targeting of certain groups for certain employment opportunities is not unusual and is an accepted practice in most industries. Since Facebook is not really the advertiser, (the company seeking employees is), Facebook has not violated the ADEA, although many states make assisting those companies who violate the law an aiding and abetting violation.
Recently the Communications Workers of America filed a class action against T-Mobile US, Amazon.com, Inc., Cox Communications and Media Group, alleging that the paid advertising platform of Facebook is being used by the defendants to keep job openings and opportunities from workers over 40 years old, by targeting age groups below 40. Those over 40 never got to see those advertisements. (Most people don’t realize protection against age discrimination begins at age 40).
Questions to Avoid
There are lots of ways to ascertain someone’s age without saying “how old are you?” Any question that could be interpreted as suggesting that someone is over 40, or is old, or designed to figure out how old they are is problematic. Don’t ever ask the following questions, or ones like them.
1. What year were you born?
2. What is your birthday?
3. How is your memory these days?
4. What class were you in at XYZ College?
5. Do you think you can work with people much younger than you?
6. Will it be a problem taking orders from younger people?
7. Do you think you are a good cultural fit?
8. How many years of driving experience do you have?
9. Is your spouse retired?
10. How many more years do you intend to work?
11. When do you expect to retire?
12. How old are your children?
13. Do you have any grandchildren?
14. How old are your grandchildren?
15. Do you remember when Neil Armstrong walked on the moon?
That last one is partially a joke, but some people have been crazy enough to ask questions like that. Believe it not, I actually have a friend who was told in an interview, “we are really looking for someone younger than you.” The key to avoiding trouble is to have a set of predesigned questions that clearly don’t cross the legality barrier, and stick to those questions. The problems come when you get into just chatting with someone that you are trying to interview. While you want to get to know them, you should not get too personal or you may be crossing the line.
Conclusion
Don’t be too casual when approaching the interviewing process. Plan out your questions, and make sure you stick to asking about the qualifications that you need to fulfill the requirements of the job. Stay alert. If an applicant answers one of your questions in a way that takes you into dangerous territory, steer the conversation away from that issue. The last thing your company needs is unwanted expensive litigation.