Compliance/Best Practices Employment Law Legal Topics

6 Ways Employers May Inadvertently Engage in Age Discrimination

Employers generally can’t use an applicant’s age as a hiring criterion without violating California’s Fair Employment and Housing Act (see Govt C §12940(a)) and the federal Age Discrimination in Employment Act of 1967 (29 USC §§621–634). Most employers know this and make sure not to ask about the applicant’s age. But they often ask other questions or include language in a job posting that run afoul of the law.

Here are some common traps that can lead to age discrimination in hiring:

1. Age-revealing questions. Employers need to be very careful when asking for information that could be used to pinpoint an applicant’s age. For example:

  • year of graduation from high school or college, or
  • favorite musical or movie.

2. Age-averse policies. Policies with respect to certain qualifications must be justified by legitimate factors unrelated to age . For example:

  • Must have certain level of physical fitness, or
  • Must have 20/20 vision.

In EEOC v Massachusetts (1st Cir 1993) 987 F2d 64, 70, the court held that a Massachusetts state law requiring state and local government employees over the age of 70 to pass annual physical examinations as a condition of continued employment violated the ADEA.

3. “Overqualification” findings. When rejecting an applicant who’s deemed to be overqualified for the position, employers need to be sure it’s not a pretext for age discrimination. It’s not pretext as long as the employer bases its decision on at least one objectively defined criterion. In EEOC v Insurance Co. of N. Am. (9th Cir 1995) 49 F3d 1418, the employer had expressed concern that someone with the plaintiff’s extensive background in loss control would become too involved in relatively uncomplicated risks and impose too much on insureds’ time if hired as a loss-control representative. This uncontradicted evidence supported the conclusion that the employer’s decision was “not a mask for age discrimination.”

A variation on the “overqualified” trap is specifying a maximum number of years of experience as a hiring factor. Requiring “no more than 10 years of experience” has a clear and predictable disparate impact on older applicants.

4. Limited recruiting. Restricting all recruitment efforts for entry-level positions to college campuses and requiring a college-affiliated email address to apply will have the foreseeable effect of excluding the vast majority of older applicants.

5. Seeking “digital natives.” Employers seeking certain skills may make the mistake of expressly seeking a “digital native” for a position. A digital native is an individual who grew up using technology from an early age , versus a “digital immigrant,” which refers to someone who adopted technology later in life. This distinction is clearly age-based and can be used to unreasonably, and thus unlawfully, screen out older applicants. See Vivian Giang, This is the latest way employers mask age bias, lawyers say, Fortune (May 4, 2015).

6. Seeking youth. Clearly biased employment policies or age-related statements made by decision-makers have been found to constitute direct evidence of unlawful discriminatory motive. For example, in Herr v Nestle U.S.A., Inc. (2003) 109 CA4th 779, 783, management issued a company-wide “objectives” memo stating that the company would “continue hiring, identifying and developing young people to have, in the long term, enough resources for future management.”

Get guidance on avoiding hiring pitfalls in CEB’s Advising California Employers and Employees, chap 1. Age discrimination in employment is covered in depth in CEB’s Wrongful Employment Termination Practice: Discrimination, Harassment, and Retaliation, chap 3.

Other CEBblog™ articles you may find useful:

© The Regents of the University of California, 2019. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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