Discrimination / Harassment: Age Discrimination

Tip: It is easier to prove age discrimination when age-related statements are made to or about the claimant (e.g., "you are too old"; "Why don't you retire?") or by using statistics (i.e., that the company fired 10 older workers in the past six months and replaced them all with employees under 40).

However, when staff did not make liability-sensitive statements, remarks, or threats with respect to age and the employee is unable to demonstrate statistical proof that the company had a practice of firing older workers and replacing them with younger ones, the chances of success with a claim are reduced. A Supreme Court ruling that an employer's decision to lay off mostly older workers close to receiving vested retirement benefits did not, in and of itself, constitute age discrimination (even though the older workers were more severely affected by the discharge than younger workers) has not helped the cause of older workers asserting age claims. In that case, the court found that since the employer proffered a rational business justification for firing a large number of older workers (i.e., to save the company money since older workers with the most seniority had the highest salaries), no illegality occurred. (Note: The Supreme Court did say that the individuals might consider filing ERISA claims to protect forfeited retirement and severance benefits as a result of the company's actions.)

The following is a discussion of areas where age discrimination often occurs.

Preemployment screening

Employers sometimes set requirements that are too high or commit violations through illegal ads. Many make statements or ask questions during the hiring interview that are illegal. For example, discrimination against older applicants occurs when they are told by an interviewer that:

• They are "overqualified"
• They lack formal education credits even though they are highly qualified by previous work experience and a college degree is not necessary for successful job performance
• They must take a preemployment physical that is either unnecessary, not job-related, or not requested of all other applicants
• They are required to answer questions such as "How old are you?", "What is the date of your birth?", or "Why did you decide to seek employment at your age?"

With respect to preemployment questions concerning age, be aware that under federal and state guidelines, employers can only ask the applicant if she is between 18 and 65, and if not, to state her age. Any other type of question concerning age is illegal. If you refuse to answer such a question and believe you were denied a job as a result, consider contacting the EEOC, a local Human Rights Commission office, or your state's attorney general's office to pursue your rights.

Physicals

Companies sometimes require potential employees to take preemployment physicals. This is not legal as a result of the passage of the Americans With Disabilities Act (ADA). Physicals can be given only if they are directly related to successful job performance (e.g., a firefighter's job) and are required by all employees after a job has been offered, not before. Thus, employers are allowed to offer a job that is conditioned on passage of a successful physical exam.

Advertising

Pay special attention to language in advertisements used to attract job candidates. The ADEA prohibits companies from publishing advertisements indicating any preference, limitation, specification, or discrimination based on age. Thus, targeted advertisements containing language such as "Industrial management trainee, recent college degree," "Sales trainee, any recent degree," "Prefer recent college grad," or "Corporate attorney, 2-4 years out of law school" are illegal. However, help wanted notices or advertisements that include a term or phrase such as "college graduate" or other education criterion, or specify a minimum age less than 40, such as "not under 21," are not prohibited by federal statute.

Copyright 1998 Steven M. Sack