Navigating Age Discrimination Claims
By MPN Staff
Age discrimination is not a rarity. In fact, 18,000 related complaints were filed with the U.S. Equal Employment Opportunity Commission in 2017. The Age Discrimination Employment Act (ADEA) strictly prohibits employers from treating applicants or employees ages 40 and older in any discriminatory manner with regard to the hiring, promotion and termination processes. The act was created in the 1960’s. However, a recent court ruling is drawing more attention to a gray area of the legislation. The Seventh Circuit recently ruled in favor of employers, allowing looser restrictions in terms of the disparate impact of age related discrimination.
The court’s decision is only applicable in Illinois, Indiana and Wisconsin. Therefore, employers across the country should practice caution to avoid making age disparate faux pas.
Understanding Disparate Impact
When a company unintentionally infringes upon the civil rights of an employee or possibly a job applicant, disparate impact occurs. A violation of one’s civil rights could potentially result in an adverse effect on the individual or a group of individuals.
In Kleber v. Care Fusion Corp., a 58-year-old man accused a company of disproportionately discriminating against older candidates. The job description listed 3-7 years as the preferred experience limit. The limit suggests that applicants with more experience would obviously be disqualified from the selected talent pool. This fact seemingly places favoritism towards younger applicants who essentially met the preferred criteria. In this situation, a younger candidate who met the preferred experience limit was hired, thus inspiring Kleber to file a lawsuit against the company.
Words Matter
In the age of SEO, buzzwords and automated resume screening, human resource professionals should be conscious of the adjectives used in job descriptions. Eliminate terms such as “experienced” and shift more focus towards terms such as “energetic”. The Society of Human Resource Management cautions against overloading job descriptions with terms that seem to heavily appeal to the Millennial worker.
Picking The Right Audience
Hiring college recruits is typically a successful method of intentionally contributing to the age diversity within your company. Additionally, this recruitment strategy helps create opportunities to transform young, eager employees into reliable, invested leaders who will seek to stabilize the future of the company. However, don’t make the mistake of focusing solely on college recruits. Ideally, your employee roster should reflect the multigenerational reality of the current workforce. Singling out a specific platform or area of advertising jobs such as a college campus likely excludes older potential applicants and could lead to an age discrimination claim.
Fight the Bias
True skill qualification is the merit by which hiring decisions should always be made. Whichever candidate displays the most desired skill set should be presented with the job offer. Those who influence the hiring decision should be willing to speak openly and honestly about why an applicant should or should not be hired. While establishing age diversity is vital to the sustainability of a company, the need to identify the most highly qualified candidate should far outweigh the need to meet a specific employee quota.
Conclusion
In most states, a person 40 years or older, can file an age related discrimination claim on two accounts. If the individual is treated a certain way based on on his/her age, whether through a verbalized comment or displayed action, it will be considered disparate treatment. However, the more subtle expression of discrimination is recognized as disparate impact. Discrimination against candidates or employees on any level, regardless of the bias, should be deemed unacceptable.
