If a job candidate is googling this question after a job interview at your company, you may be headed for trouble.
At both the federal and state level, anti-discrimination laws exist to prevent businesses from hiring or not hiring based on personal characteristics that are not relevant to an individual’s ability to do the job. Age is one of them. The Age Discrimination in Employment Act of 1967 (ADEA) protects people who are age 40 and older from being treated unfavorably because of their age during the hiring process—and when employed. In 2016, 20,857 age discrimination charges were filed with the U.S. Equal Employment Opportunity Commission (EEOC), the government agency that enforces ADEA.
For private businesses, the ADEA only applies to those with 20 or more employees, but why put your business at risk? If you intend to grow your business, doesn’t it make sense to establish policies and procedures now to help ensure you don’t become a statistic and possibly face a costly lawsuit?
You need to pay attention to every aspect of employment:
- Work assignments and responsibilities
- Opportunities for career advancement
- Fringe benefits
Any other terms or conditions of employment are also subject to age-related discrimination scrutiny.
While the ADEA doesn’t protect younger individuals from discrimination in the workplace, some state laws do. So, you could put yourself in a tricky situation if you in any way let the age of job applicants or employees affect how you treat people. Also, just because your business falls below the 20-employee minimum for ADEA to apply to you, you might be subject to your state’s age-related anti-discrimination laws. For example, individuals in Arkansas can file a claim against employers with a minimum of 9 employees under state law. And in Colorado, all employers, regardless of number of employees, must comply with the state’s anti-discrimination laws.
What can you do to help keep your business from violating the laws protecting against age discrimination?
Below are a few tips that can help:
- In your employment ads, avoid language that could land you in trouble. (For example, “Looking for a young, energetic professional…”) Generally, ADEA deems it unlawful to mention age limitations, preferences, and outright specifications in job advertisements.
- Be cautious when asking an applicant to disclose her age or date of birth. While it’s not explicitly prohibited, that type of inquiry will be closely scrutinized to ensure it wasn’t asked in an effort to deter older workers from applying for a position or otherwise discriminate against them based on age. According to the EEOC, “If the information is needed for a lawful purpose, it can be obtained after the employee is hired.”
- Don’t establish company-wide policies or practices if they will adversely affect applicants or employees who are age 40 or older. [Note that liability might not apply if a policy or practice’s impact is due to a reasonable factor other than age (RFOA)].
- Make sure your business’s managers and employees understand that age-related harassment is illegal when frequent or severe enough to cause a hostile work environment.
Realize we’ve merely glazed over the tip of the iceberg with the considerations above, so I encourage you to consult with a human resource professional and/or attorney for guidance and feedback on your hiring and employment efforts.
While avoiding a job discrimination lawsuit shouldn’t be a concern that keeps you up at night, it is something you need to be vigilant about through having sound standards, procedures, and staff training in place. I know you’ve worked hard to bring your business this far; don’t let sloppy employment practices stand in the way of your success.