Old Enough to Know Better: Identifying and Confronting Age Discrimination in the Hiring Process
Nan Knight

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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.

1. 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.
2. 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.
3. 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.
4. File charges against the employer you believe discriminated against you on the basis of age.
5. 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?

1. 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.
2. EEOC will notify the company that they have been charged with age discrimination and will request documentation from you and from the company.
3. 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.
4. 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.
5. 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.