Preventing Age Discrimination in Employment: Answers to Your Top FAQs
Nondiscrimination laws prohibit employers from discriminating against applicants and employees on the basis of their age. However, in some cases, seemingly harmless practices may violate age discrimination laws.
To help you better understand this area, we've compiled some key information and provide answers to frequently asked questions related to age discrimination.
Q: What laws prohibit age discrimination?
A: Under federal law, the Age Discrimination in Employment Act (ADEA) prohibits employers with 20 or more employees from discriminating against applicants and employees who are 40 years of age or older, in all aspects of employment, including hiring and job assignments, compensation and benefits, promotions, training, discipline, and terminations.
The law prohibits intentional discrimination, such as refusing to hire older workers or treating them less favorably, and seemingly neutral policies that disproportionately affect older workers, unless the practice is justified by a "reasonable factor other than age." Example: An employer that requires applicants to complete a physical fitness test, may disproportionately exclude older workers and potentially violate the ADEA.
Many states and some jurisdictions also have similar laws, some of which cover smaller employers and offer more worker protections. Example: Lehigh County, Pennsylvania prohibits employers from discriminating against employees that are over the age of 35, on the basis of their age.
Check your state and local laws to help ensure compliance with all age protections.
Q: Does the ADEA prohibit asking for an applicant's date of birth on job applications?
A: It is a best practice to avoid asking for a candidate's date of birth during the pre-employment process or posing questions that may indirectly reveal a candidate's age, such as "what year did you graduate?" If such inquiries reveal protected information, and an applicant is disqualified from the job, the applicant may try to argue that the knowledge of their membership in a protected group was used against them. In addition, some states expressly prohibit inquiries about age.
Q: What can I ask an applicant if the job's minimum age requirements are set by state or federal law?
A: If a job has minimum age requirements, an employer may state the minimum age requirement and ask whether the applicant is at least that age. For example, an employer can say "State law requires that individuals in this job to be at least 18 years of age. Are you at least 18 years old, yes or no?" to ascertain whether the individual meets that requirement without asking for a specific age. Otherwise, employers should avoid asking for an applicant's age during the hiring process, including on job applications and during interviews.
Q: What assumptions should employers avoid, from an age discrimination perspective?
A: Certain workplace statements and assumptions can be problematic through an age discrimination lens. For example, the following statements are problematic because they could directly or indirectly exclude older workers from certain jobs or opportunities due to their age.
Statements to avoid:
- "We need to hire someone young to really understand this new technology."
- "We need younger employees to compete."
- "Let's just recruit on college campuses only."
- "They wouldn't be interested in that training because of their age."
- "This employee is older and wouldn't be interested in a promotion that requires a lot of travel."
Ensure your practices and decisions aren't based on stereotypes or generalizations about age and avoid assumptions about what employment opportunities workers would or wouldn't want.
Q: Can my company limit jobs to individuals under a certain age?
A: In general, an employer may not exclude workers over the age of 40 from a job because of their age. In limited cases, an age limit may be permitted as a bona fide occupational qualification (BFOQ) under the ADEA. Employers should consult legal counsel when determining whether a BFOQ exception applies.
Q: May I limit jobs to individuals over a certain age?
A: Employers may have minimum age requirements for jobs. In fact, minimum age requirements may be set by various federal and state laws designed to protect minors from hazardous work or certain industries.
Q: Can my company have a mandatory retirement age?
A: With limited exceptions, the ADEA generally prohibits mandatory retirement based on age when the employee is age 40 or older.
Q: Are there special considerations for laying off employees who are age 40 and over?
A: Yes. An employer's decision to lay off certain employees while retaining others may lead discharged workers to believe that they were discriminated against based on their age or other protected characteristics. Consult with legal counsel before making an employment decision that could adversely impact an older worker or an employee in a protected class.
Conclusion
As an employer, you should take the necessary steps to help ensure your workplaces are free of discrimination based on age, among other protected characteristics. Review your employment practices and make sure your company complies with the ADEA and similar state or local laws.
Learn even more on this topic through our webinar Hiring and Onboarding: 10 Do's and Don'ts to uncover best practices for providing a great candidate experience.
This article was originally published as an "ADP HR Tip of the Week" which is a communication created for ADP's small business clients.
