Your company has an opening and you want to upload a job posting that reads: “Applicants should have no more than 7 years of experience.” But you wonder: could this be a form of discrimination under the Age Discrimination in Employment Act (ADEA)? The Supreme Court was recently asked to review this exact issue, the question being: are job requirements that negatively affect older applicants (such as a maximum experience cap) a violation of ADEA? The Supreme Court declined to hear the appeal, leaving it an open question for now; however, there are still best practices that employers would be wise to follow when seeking candidates for hire:
- Looking for a computer savvy applicant? If you say you are seeking a “digital native,” that could be seen as thinly veiled code for “Seniors need not apply.” Instead, list the exact proficiencies you look for in the ideal job candidate. It is always best to post objective criteria and let the applicants’ skills speak for themselves.
- Revisit your assumptions! Awareness of your own biases makes you less likely to reinforce old-fashioned stereotypes. For example, it is commonly believed that older applicants are less willing to travel or relocate. However, the truth is that older applicants might be more willing to explore new locations-they are often less tied down than are younger applicants with children. Another stereotype is that older workers can be slow and inefficient. But older applicants can often be more efficient because they already know the ropes and require less training.
- Do not limit your hiring search to places where you are likely going to find only young applicants, such as job boards for recent alumni.
- Avoid interview questions you would not ask a younger applicant, such as “Do you think you’ll have difficulty fitting into a fast-paced environment?”
- Do not directly reference an older applicant’s age, even if you think your comment is a harmless joke. While you might think an “OK Boomer” joke is funny, it is unlikely that the older applicant will. In fact, the popular meme was recently referenced in a Supreme Court case where it was argued that it could be an “actionable offense” for a hiring manger to call an applicant a “Boomer.”
Finally, older job applicants can play an important role in combating discriminatory hiring practices if they recognize age discrimination and complain about it. A recent survey found that although age discrimination remains a significant problem in the U.S., only 3% of older employees have ever made a formal complaint. Age discrimination is sometimes called “the last acceptable form of discrimination,” and by speaking up, rather than just accepting discriminatory rejections, older applicants can help end the culture of prejudice against older employees in the workplace.
If you have any questions related to age discrimination or any other aspect of employment law, you can contact Thatcher Law Firm at 301-850-1246.