Old Enough to Know
Better: Identifying and Confronting Age
Discrimination in the Hiring Process
Nan Knight
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Scenario one:
The lab unit you want to work in includes only
20-somethings. The supervisor asks bluntly, "Are
you sure you'd be comfortable working exclusively
with people who are so much younger than you?"
You are hired, but the supervisor's words trouble
you.
Scenario two:
"Wow," says one of two interviewers
as he looks at your job application. "You've
really been around the block! You're way older
than we had in mind for this job!" Later,
when you hear the company has hired someone younger,
you're told it's because you have "too much
experience."
Scenario three:
At six different companies you are turned down
for innovative research and development positions
that require specific sets of computer skills
that you do not have. You discover that all of
these positions were filled by individuals younger
than 35 who had these computer skills but with
less overall experience in the chemical industry
than you.
Ouch! You may be only 43, but encounters like
these can make you feel like you're 102. What's
more, although you may suspect that age discrimination
is a factor in your inability to connect with
the jobs you want, you're not at all sure that
this is actually true by any legal definition
or even how you would go about proving you've
been discriminated against.
In fact, although you are protected by a series
of federal and state laws, as a job seeker you
are in a position in which discrimination can
be difficult to identify and even more difficult
to prove. Most high-profile age discrimination
cases are brought by employees who are already
on the job and find themselves passed over for
promotion, are forced into early retirement, or
do not receive training, benefits, or pay comparable
with those of younger colleagues. In these situations,
the facts are more measurable and easier to prove.
"We don't hear as much about age discrimination
in hiring," says Laurie McCann, Senior Attorney
for the American Association for Retired Persons
(AARP) in Washington, DC. "But it's clearly
there. Often the applicant has a feeling in his
or her gut that age was a factor in a decision
not to hire. The question then becomes how and
whether to seek a remedy."
But take heart--a number of resources are available
to help you overcome age discrimination in the
job-seeking process. Perhaps more important in
your quest to get the job you want on your terms
is the ability to identify age discrimination
when you encounter it. Of the three scenarios
above, one may be discriminatory and actionable,
another is "probably" not, and a third
is not. Knowing the difference can get you (and
potential employers) past the "age thing"
and into a satisfying and rewarding job that suits
your skills and experience.
Your Basic Protection:
Federal Laws about Age Discrimination
The federal government recognizes the special
contributions that older workers make to the workplace
and to the economy. Congress has passed and enforces
laws that protect against discrimination on the
basis of age. You don't have to be a lawyer to
know your basic rights under these laws.
Age Discrimination in Employment Act of 1967
(ADEA)
ADEA
protects individuals who are 40 or older from
employment discrimination based on age. This protection
applies to employees and job applicants.
Under ADEA it is unlawful to discriminate against
a person because of his/her age with respect to
any aspect of employment, including, but not limited
to, hiring, firing, promotion, layoff, compensation,
benefits, job assignments, and training.
ADEA applies to all employers with 20 or more
employees. This includes all state and local governments,
the federal government, employment agencies, and
labor organizations.
Under the provisions of ADEA, except for rare
and specified exceptions, it is unlawful to include
age preferences, limitations, or specifications
in job notices or advertisements. The ad cannot
ask for a specific maximum age ("under 35",
for instance) or be worded in such a way as to
exclude older workers ("looking for college
students"). The law does not
specifically prohibit a prospective employer from
asking your age or date of birth. However, the
Equal Employment Opportunity Commission (EEOC)
closely scrutinizes such inquiries when charges
of age discrimination are filed and, if made for
unlawful reason, these inquiries can be taken
as evidence of illegality in hiring practices.
The law is designed so that employers must act
as if "blinded" to age in the hiring
process. The result is that if two jobseekers
older than 40 are being considered for the same
job, age still must not be a factor in the company's
decision as to which person to hire.
Civil Service Reform Act of 1978 (CSRA)
Among the many elements of this very broad series
of reforms was a prohibition of discriminatory
actions by federal employers and by agencies or
companies accepting federal funds as part of research
or other operational expenses.
Older Worker Benefit Protection Act of 1990
(OWBPA)
Congress passed OWBPA as an amendment to ADEA
to specifically prohibit employers from denying
benefits to older employees. When applying for
a job, it's difficult to tell whether the benefits
that are offered to you are the same as those
of younger workers. However, you may be able to
obtain a profile of your company's average benefits
from an industry or government source, such as
the National Aging Information Center (NAIC),
and request that your hiring benefits are in line
with these. Once on the job, keep in mind the
protections that OWBPA offers.
The Civil Rights Act of 1991 (CRA)
CRA includes provisions for monetary damages in
cases of intentional employment discrimination.
You're Protected--from
What?
If you're over 40, you're protected by a broad
series of federal laws and probably by additional
reinforcing local and state regulations. But how
do you know discrimination when you see it? If
someone said to you at a job interview, "Sorry,
old timer, we only hire chemists under 30,"
the issue would be clear. Most employers are well
aware of their obligations under the federal laws,
and instances of age discrimination are usually
less clearly defined. In fact, if you suspect
you've been discriminated against, you will want
to get legal advice to find out, first, if your
suspicions might be true and, second, whether
the effort to pursue a resolution would be worth
your time and money.
EEOC is the federal agency charged with enforcing
and overseeing ADEA and subsequent amendments
that protect older workers. Once you decide to
file a charge of age discrimination in hiring
with EEOC, an established series of steps takes
you from initial interview to final decision.
It's the part before this that's the trickiest,
say experts in the field.
Both McCann at AARP and EEOC staff members interviewed
advise older job seekers to look for warning signs
in the application, interview, and selection process.
None of these signs is definitive evidence of
age discrimination. Instead, they should be red
flags that make you look more carefully at every
aspect of prospective employer's treatment of
you as a prospective employee.
Warning signs in the hiring process:
- The job advertisement contains words that
you suspect are not-too-subtle code for "young,"
such as "fresh," "energetic,"
or "enthusiastic."
- The advertisement specifies what seems to
be a very short experience time needed for a
complex or supervisory position.
- The interviewer repeatedly refers to your
age, either specifically or generally, regardless
of how friendly he or she is in doing so.
- The interviewer makes a point of telling you
that most new hires are much younger or have
far less experience than you.
- The interviewer assumes without asking that
you lack computer skills or other technological
capabilities needed to do the job or is visibly
surprised when you note that you have these
skills.
- On a tour of the facility, you notice that
few older workers are on the job.
- You are told that you have "too much
experience." Although in a few cases the
courts have sided with employers, most courts
have found this an invalid reason for offering
a younger and less experienced employee the
same job that was denied to an older employee.
- You are told that your benefits package will
be modified or different from those of younger
employees because of your age.
- The interviewer assumes that you will not
want to participate in continuing education
or training programs because of your age.
The common element in many of these warning signs
is assumptions. If the interviewer or the
company is making assumptions about you based
solely on your age and you are turned down for
employment or offered employment inferior to that
offered to younger applicants, then it is possible
that you're being discriminated against.
Take a Quick Inventory
Even before you seek professional advice on possible
age discrimination, you should step back and reassess.
Is it possible that something other than your
age was the reason a younger worker was hired?
"Don't give them any ammunition," says
McCann. "Many employers have unspoken and
engrained assumptions about older workers--set
in their ways, unwilling to learn new skills,
unable to be flexible." If you reinforce
these stereotypes in your interview, then it's
clear that the employer would want the younger
applicant.
Know your limitations. Are you truly qualified
for the job? Do you have every skill the employer
wants in that position, including high tech skills?
Does this job build on your previous experience?
If the job is in an entirely new field, then what
distinguishes you from younger workers? Should
you get additional training or special certification?
These kinds of questions may send you back to
the personal drawing board to change your approach
to job seeking and the skills you bring to the
process. By proving to potential employers that,
at least in your case, their assumptions about
older workers are wrong, you may find more open
doors into the jobs you want.
What Next?
Bear in mind that filing an age discrimination
charge with EEOC requires being well prepared
and ready for what could be a long wait.
- Keep records.
"For people who are on the job and experiencing
discrimination, we recommend keeping a journal--time,
dates, exactly what was said to whom by whom,
and who was in the room at the time," says
McCann. Although most hiring interactions are
limited to one or two interviews and possible
e-mail or hardcopy correspondence, McCann advises
that jobseekers follow a similar practice.
- Get qualified advice
about whether or not you have sufficient reason
or evidence to file a charge. EEOC can put you
in touch with a number of referring organizations.
Another excellent source for legal advice is
the National
Employment Lawyer's Association.
- Contact EEOC
to file a charge, and you must do it quickly.
Depending on local laws, you may have as little
as 90 days after the act of discrimination to
file. Call 1-800-669-EEOC for information on
initiating the process. Many states and cities
have local fair employment practice offices,
and these agencies may be assigned to investigate
your case first and try to work things out on
a local level.
- File charges
against the employer you believe discriminated
against you on the basis of age.
- Sixty days after these charges are filed,
regardless of whether EEOC has taken action,
you can file suit in
court. Your attorney can counsel you
about how and whether to proceed with such a
suit. Any monetary or other settlement you receive
from this suit would be separate from the resolution
reached by EEOC.
This sounds simple and straightforward enough
but
What to expect?
- First, be realistic. In fiscal year 2000,
EEOC received more than 16,000 charges of
age discrimination (down from a high of almost
20,000 in 1993; the tighter the job market,
the more complaints the commission receives).
Of these, more than half (58%) was judged to
have no reasonable cause. Successful conciliations
were reached in only 1.6% of cases, very few
of which pertained to the hiring process.
- EEOC will notify the company that they have
been charged with age discrimination and will
request documentation from you and from the
company.
- Part of EEOC's charge from Congress is to
resolve difficulties. Someone may contact you
to see whether some resolution, either in the
form of a job offer or a monetary settlement,
can be reached. Sometimes just speaking up about
age discrimination and raising the possibility
of prolonged interaction with EEOC can change
a potential employer's mind. However, although
companies are legally barred from exacting any
retribution for filing a suit, you should consider
carefully whether you want to work for a company
against which you have previously filed an EEOC
complaint.
- If no resolution is forthcoming, then EEOC
investigates further. During all phases of this
process, especially during these "waiting"
periods, McCann advises that the squeaky wheel,
as always, gets the most attention. "Once
an investigator is assigned to your case, you
should call every two weeks, make sure you speak
with the investigator, and have specific questions
ready about progress on the case," she
says.
- At the end of the process, you may have nothing
more than the satisfaction of having pointed
out a company's dubious hiring practices to
the federal government. You can be sure that
the details of your case, whether the company
was found to be at fault or not, will remain
in the file for possible later review by EEOC.
As for the
three scenarios at the beginning of this article,
would any of them qualify as legally actionable?
The Good News: You're Not Alone
The Bad News: You're Not Alone
From now until 2014, seven baby boomers will
turn 50 every minute. A recent survey by Scudder
Investment Services indicates that 53% of these
people see retirement as an opportunity to begin
a second career and will not be leaving the employment
market entirely. Age discrimination issues are
sure to stay on the hot burner, as this large
and experienced "new" labor force approaches
jobs with full awareness of rights protected under
ADEA and associated regulations. Most employers
will be anxious to stay in compliance with both
the letter and the spirit of such antidiscrimination
requirements. That's good news for older workers.
On the other hand, if you're a member of this
age group, you may find yourself right out there
competing for jobs with your
experienced, savvy cohorts. That's why many
career advisors counsel older workers to get the
"antiyouth" chip off their shoulders
and acquire the specialized, cutting-edge training
they need to compete against fellow jobseekers
of any age. In a crowd of older workers, those
who have kept up to date and shown a willingness
to adapt and retrain will stand out.
Nan Knight is a freelance science writer and
editor whose credits include Smithsonian exhibits,
Discovery Channel Web sites, and a wide range
of publications on radiation in medicine.
Resources on Aging and Age Discrimination
American Association
for Retired Persons (AARP)
The AARP has excellent resources both on age discrimination
and special challenges to older workers in looking
for employment. A helpful resource brochure on
age discrimination is available for order through
the Web site or by contacting the AARP fulfillment
office at 601 E Street, NW, Washington, DC 20049.
FreeAdvice.Com
This site includes extensive links and summary
information on age discrimination and other worksite
related issues.
IEEE
This scientific and technical organization includes
advice, data, and information for older workers
on its Web site. IEEE is active in gathering data
about employment through surveys and professional
conferences. The site contains numerous useful
links to pertinent law and resources.
National Aging
Information Center (NAIC)
NAIC is operated by the U.S. Administration on
Aging (AoA) and is a central source for a wide
variety of program- and policy-related materials
and demographic and other statistical data on
the health, economic, and social status of older
Americans. The center offers inquiry response;
publications and databases on AoA research; a
full-service reading room and reference collection
in Washington, DC; and useful databases. Information
from the NAIC collections may help you learn more
about the current age demographics in the types
of position you are seeking or in the industries
in which you want to work.
U.S.
Equal Employment Opportunity Commission (EEOC)
This is a comprehensive overview of EEO laws,
including the ADEA and the Civil Rights Act of
1991. Discriminatory practices are defined, resources
and links are provided, and a helpful Q&A
section addresses the most common concerns about
age discrimination.
Related Reading
Are
Employers Out of Step With Older Employees?
Wall Street Journal, May 23, 2001.
Older
Employees Are Agitated Over Age Bias. Wall
Street Journal, May 30, 2001.
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