Age Discrimination: Real and Ill-Legal

January 2018 – Recent rampant lay-offs and “restructuring” have left many out-of-work through no fault of their own. Frequently well-skilled individuals attempting to re-enter the workforce are told they are “over-qualified”, or that the salary offered does not meet their background. This age-discrimination is wide-spread and ill-legal.

Under the Age Discrimination in Employment Act of 1967 (ADEA), applicants who exceed 40 years of age may not be discriminated against based upon their age. This discrimination applies with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. Harassing an older worker because of their age is also prohibited.

It is also prohibited to retaliate against such an employee for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.  Conversely the ADEA, permits employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 years old or older.

Employers are prohibited from including age preferences, limitations, or specifications in job notices or advertisements. Job notices or advertisements may specify an age limit only in the very rare circumstances where age is a “bona fide occupational qualification” (BFOQ).

While the ADEA does not explicitly prohibit an employer from asking an applicant’s age or date of birth prior to employment. Such an inquiry may indicate possible intent to discriminate based on age, contrary to the purposes of the ADEA, and may deter older workers from applying for employment. If the information is needed for a lawful purpose, it can be obtained after the employee is hired.

Employers and Human Resource departments should be aware of all discrimination prohibitions enforced by the U.S. Equal Employment Opportunity Commission (EEOC). Employers would do well to consider the wealth of experience an older worker may bring to the job-site.