Avoiding Age Discrimination Claims While Interviewing

In a BLR boot camp titled "HR’s Age Bias Prevention Workshop: Smart Policy Practices Under New EEOC Rules and Realities," Wendy Hyland outlined some guidance for employers to avoid age discrimination language and questions in job advertising and interviewing.

Age Discrimination and Job Advertising: Words to Avoid

The ADEA "has some really specific language that outlines its prohibited employment practices," Hyland advised. It "bars advertisements which indicate a preference on the basis of age," stating:

It shall be unlawful for an employer, labor organization, or employment agency to print or publish, or cause to be printed or published, any notice of advertisement relating to employment indicating any preference, limitation, specification, or discrimination based on age.

Additionally, regulatory guidance from the EEOC explains that help wanted notices or advertisements may not contain terms and phrases that limit or even deter the employment of older individuals. Certain buzzwords, according to the EEOC, indicate age preference in violation of the ADEA unless an exception applies. Here are examples:

• young
• college student
• recent college graduate
• boy
• girl

Words such as this are believed to "indicate an unlawful preference on the basis of age, or an unlawful exclusion on the basis of age," Hyland explained. However, this list is not comprehensive; other words of a similar nature should also be avoided. It’s very important to remember that your job posting should only indicate the qualifications required to do the job – usually being of a certain age group is not a prerequisite.

Even with online application forms, be careful. It’s probably best to avoid questions that even indicate the applicant’s age, for example. The EEOC tells us that the ADEA does not specifically prohibit inquiries about applicants’ age or date of birth; however, because such inquiries may deter older workers from applying for employment or indicate possible age discrimination, inquiries will be "closely scrutinized." It’s probably better to steer clear.

Age Discrimination and Interviewing: Questions to Avoid

What can you legally ask during an interview? When formulating interview questions to avoid discrimination claims, first "create a list of questions to ask the applicant, and consider whether it directly relates to the job description and essential tasks of the position. Will the questions help you find qualified applicants who want to work?" Hyland advised to ask yourself. If not, you probably don’t need to ask it.

Here are some sample questions to avoid while interviewing if you want to steer clear of potential age discrimination claims:

• We’re a younger company and we don’t have many employees here in your age group. Will that bother you?
• Will you be comfortable being supervised by someone younger in the department?
• What year did you graduate from high school/college?
• How old are you?
• How much longer do you plan to work before retiring?
• When were you born?

However, you do need to evaluate applicants and ensure they’re legally able to work for you, so you can ask:

• Are you over age 18?
• What are your long-term goals professionally?
• Part of the job responsibilities at Acme restaurant involve serving alcohol. Are you at least 21 years old?

These options are more neutral and still determine what you need to know.

For more information on age discrimination, order the boot camp recording. To register for a future boot camp or webinar, visit http://catalog.blr.com/audio.

Attorney Wendy Hyland with Fisher & Phillips LLP (www.laborlawyers.com) represents employers in all aspects of employment law, including the ADA, FMLA, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and related tort and contract claims. Ms. Hyland also works with clients on effective policies, investigations, and training.