Watch What You Say in the Face of Rising Age Discrimination Claims

Between a faltering economy and more workers over the age of 65 remaining in the workforce, age discrimination complaints filed with the Equal Employment Opportunity Commission (EEOC) have risen dramatically, with 43% more complaints filed in 2012 than in 2000. While employers may be familiar with anti-discrimination laws, some may not realize that the words and phrases used in personnel materials — or even an off-hand remark by a manager — can be grounds for an age discrimination claim.

The Age Discrimination in Employment Act (ADEA) protects employees 40 and over from discrimination with respect to any term or condition of employment — including hiring, firing, promotion, compensation, benefits, job assignments and training. Consequently, it is important for employers to avoid discriminatory references to age in any stage of employment, from job advertising and interviewing to termination notices.

Job Postings

With respect to the hiring process, the ADEA specifically bars job advertisements indicating a preference for applicants of a particular age, or that would deter older applicants. A common way many employers work around this is to advertise that they are a "young, vibrant company." This, however, implies they are seeking similar applicants and would tend to deter older applicants from applying.

Regulatory guidance from the EEOC provides examples of certain advertisement buzzwords that can lead to increased scrutiny, including —

  • Young;
  • College student;
  • Recent college graduate;
  • Boy; and
  • Girl.

Essentially, employers should avoid words that refer to age and list only the required qualifications for a position in a job posting; generally, being in a certain age group is not a prerequisite. Similarly, employers should avoid asking for an applicant's age or date of birth since this may deter older applicants from applying and could lead to closer scrutiny by the EEOC.

Interviews

While the ADEA does not specifically prohibit inquiries about an applicant’s age or date of birth, the EEOC has asserted such questions will be closely scrutinized. Consequently, employers should only ask interview questions directly related to the essential tasks required by the position. Avoid most questions related to age, such as —

  • What year did you graduate from high school?
  • How long do you plan to work before retirement?
  • Would you be uncomfortable working for a younger supervisor?

Some questions, however, are legitimate if they seek to ensure an applicant is legally able to perform a job. For example, if a position entails serving alcohol, employers may ask if an applicant is over the age of 21.

Employment Decisions

Employers must also be mindful of age discrimination in their day-to-day comments and personnel materials. The EEOC considers inquiries into an employee's plan for retirement to be a basis for discrimination and courts have found age-based comments to be direct evidence of discrimination. For example, in the 2001 case of Harrison v. Department of Justice, a supervisor's reference to an employee as a "dinosaur" and an "old man" was deemed connected to the employer's decision to transfer the employee.

Other age-based words and phrases to avoid include —

  • Ancient;
  • Old school;
  • Set in his ways;
  • Lacking in energy;
  • Not up-to-date;
  • Like a bag of bones; and
  • Long in the tooth.

Language must be carefully monitored to ensure it cannot be used in a complaint if an older employee is later terminated. Employees and managers need to be aware of the potential for age discrimination complaints stemming from off-handed comments, and even seemingly benign wording in job advertisements and personnel materials.

Topics:  Age Discrimination, Discrimination, EEOC, Employee Handbooks, Employer Liability Issues, Employment Policies, Hiring & Firing

Published In: Civil Rights Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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