Imagine you are among the over-fifty crowd and are in the middle of a job interview when your prospective employer asks you how old you are. While you would likely be caught off guard and mutter the answer, you might be wondering in your head if it could possibly be legal to be asked such a question. The answer is yes—and no. Most of us believe that due to the Age Discrimination in Employment Act, the age question is illegal—not to mention rude. In fact, the question itself of how old you are is legal for employers to ask of those who are under forty. This, of course, begs the question—how will your prospective employer know you are under forty if they don’t ask your age? It also allows employers to try to circumvent the ADEA to ask the question under the guise of “I thought he/she was younger than 40,” while still getting the answer they want.
The ADEA offers protection to those who work in companies with more than 20 employees from age discrimination. This means that in a small company scenario you could—quite legally—find yourself being asked your age or the year you were born or which year you graduated from high school. Some job applications will include a space for DOB with a disclaimer attached. Before you find yourself in the middle of an interview being asked the age question you should know what you will say and how you will react as well as what your legal options are. Unfortunately a large part of what we know about age discrimination in the workplace is ambiguous at best. Most of those over the age of fifty believe that age bias is a simple fact of life and that there is little to be done about it.
Things You Cannot Do When Faced With a Discriminatory Employer
You cannot compel a potential employer to communicate with you regarding why you were passed over for a job, and you can’t dictate the company’s hiring decisions or behaviors. In other words, should staff reductions be occurring at a business, the older and longer-service employees may be the first to go by virtue of the fact that they receive better pay and have higher healthcare and retirement costs associated with their employment. This is permissible when it’s based on finances so long as the age is not the basis for the decision–you can see the vagueness of such dictates.
Unless you have enough evidence to prove age played a part in hiring or promotional decision, you cannot challenge management’s authority to make employment decisions. Employers are also permitted to establish legitimate job qualifications and they are allowed to refer to age in a roundabout way under certain circumstances. For instance, the job requirements may ask that the employee be able to routinely lift packages up to 70 pounds. This would tend to disqualify a sixty-two year old woman, yet is not considered age discrimination.
What You Can Do About Age Discrimination
The best thing you can do when faced with age discrimination is to know and understand your rights, to meticulously document every single instance of age discrimination and to hire a qualified employment attorney who can evaluate your potential case and assist you in filing a lawsuit for age discrimination.