Suppose you started last month as Regional Sales Manager for your company, Brilliant Business, Inc (“Briliant”), and you need to hire 5 new salespeople for your region. Your boss, Vicky the VP of Sales, tells you that Brilliant recently settled a lawsuit under the federal Age Discrimination in Employment Act (ADEA) for $2 million. Since you will be hiring and managing employees, Vicky is requiring you to attend training on applicable federal and state employment laws.
Being a fair and open-minded person, you willingly attended the training – and boy was it an eye-opener! Tracy the Trainer described practices that could land you and your company in legal hot water –and they are practices that you and your friends use and rely upon all the time. You felt this information was so important you have offered to share what you learned with us—and you come armed with questions—which we will address in this post and over the next week or two. But wait. First let’s get our readers up to speed– after the jump, of course!
First, what is the Age Discrimination in Employment Act (ADEA)? The ADEA is a federal law passed in 1967 that prohibits employers and employment agencies from discriminating against an applicant or employee 40 years of age or older based on his or her age with respect to hiring, promotion, transfers, termination, layoff, training or other opportunities, compensation, benefits or other terms of employment.
Now back to you and Brilliant: Brilliant has 150 employees, so it is clearly subject to the ADEA. Some of your friends own or work as hiring managers in businesses with fewer than 20 employees. You learn during the training that a number of states also have laws prohibiting age discrimination, and their thresholds are often lower. For example in New York, the prohibitions apply to employers with 4 or more employees. In New Jersey there is no minimum number (yes, you heard right.) Since Brilliant hires and employs people in several states, you know that Brilliant needs to be aware of and follow anti-discrimination laws in every state where they employ people. (So do your friends, and so do our readers).
Here are five of the most common mistakes you learned about in your training that you have decided to share with our readers. OK, is everyone out there ready? Here they are:
- Questions that could elicit information about a candidate’s age;
- Including criteria in a Job Advertisement or Posting that Could Exclude Qualified Candidates Over 40:
- Improper Administration and Use of Pre-Employment Tests;
- Using a third-party recruiter to discriminate against candidates over 40;
- Not Taking the ADEA seriously.
OK, let’s look at the first one, improper –and maybe downright illegal–questions. Most employers know that asking a candidate “How old are you?” is off-limits. You knew that before you attended the training session. What you didn’t know was that there are a number of other questions that could elicit the same information, and earn you free admission to Age Discrimination Liability World. Here are just a few if them:
- If we hired you, how long would you stay with us?
- How much longer do you plan to work?
- How would you feel about working for someone younger than you?
- When did you graduate high school/college/graduate school?
- How many years of experience do you have?
In my over (ahem) years of practicing employment law (sorry not giving away my age here) I have gotten very surprised reactions to these examples. In fact, you are thinking: Don’t I have a right to know if someone: a) may retire soon after starting the job; b) might have trouble reporting to a younger boss; c) has the educational credentials necessary for the job to name a few items.? Yes, you –and almost every employer– are entitled to some of that information. That said, asking questions that could reveal someone’s age (even their approximate age) is a really bad idea, because it is illegal to base your hiring decision on the person’s response. What if you ask the question, the answer indicates the candidate’s approximate age, but you don’t base your decision on the response? Here’s the problem: if a disgruntled, rejected candidate files an age discrimination charge with the EEOC how will you prove that you didn’t base your decision on the response? It’s like trying to un-see something you just saw.
Do you really need to ask about staying power/retirement or getting along with a younger boss? Shouldn’t you also be thinking about a younger person’s staying power? According to a survey of 1189 workers by Future Workplace, entitled “Multiple Generations at Work”, 91 percent of millennials (those born between 1977 and 1997) expect to stay at a job less than three years. If you do need a minimum number of years of service, how about asking instead “For X, Y and Z reasons, a minimum number of _ years’ commitment is required for this job. If hired, do you foresee being able to make and meet that commitment?” You could also ask “How long were you at the position you held immediately prior to this one?” You can also ask “Why did you leave (your previous job) or why are you looking to leave (your present job)?” You now have the necessary information without eliciting information about your candidate’s age. If you ask those types of questions of all your candidates, you are unlikely to face age discrimination liability.
So what if the boss would be younger than your candidate? Would you ask an under-40 candidate if s/he would get along with an older boss? It is really worth the risk to ask such questions?
What about years of experience? If the job requires at least some experience, you can set a minimum amount and ask “We estimate that optimal performance of the essential job functions would require at least three years of experience in this field. If hired, would you be able to provide reference checks and other proof that you meet that requirement?” These questions are focused on essential job qualifications. Stick to those types of questions, to minimize your exposure to against age –and other– discrimination claims. “Wait a minute”, you might be thinking, “Can’t I make sure I’m not hiring someone who’s overqualified, who might get bored and leave as soon as something more in line with their qualifications comes along?” Refer to my comments above about staying power. Isn’t there at least as much risk of a younger, less experienced worker, after learning the job getting bored and moving on? Maybe the more experienced worker had their years in the sun and is looking for something less demanding. “But”, you say, “someone that experienced might not be interested in what I’m willing to pay”. Why don’t you let them make that decision? Maybe in exchange for something less demanding, s/he is willing to work for less pay. Just make sure that you offer that amount to all similarly situated candidates, regardless of age.
Let’s stop here for now and pick up next week with job advertisement criteria. Au revoir!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here..
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