ADEA and Employment Advertising and Applications
By: Source: AARP.org Date Posted: 2006-08-30 10:09:02.516990-04:00
The aging U.S. workforce presents legal and management policy challenges to human resource professionals. These include how to recruit, hire, manage and train older workers and how to establish compensation packages that do not discriminate against workers based on age.
Have you reviewed your employment policies and practices to ensure that they comply with the Age Discrimination in Employment Act (ADEA) and other state and local age discrimination laws?
Here are some legal guidelines to consider when reviewing your employment policies and practices in light of the ADEA and related laws:
Advertising for Employment
Advertising for a position, like any other employment practice, must be determined by the legitimate qualifications of the position. Age is rarely a legitimate qualification.
The ADEA specifically prohibits advertisements or notices for employment that discriminate based on age (29 U.S.C [623(d]). The prohibition broadly applies to any preference, limitation, or specifications based on age. For example: it is unlawful to advertise for "young college graduates" or "attorneys age 25-30 for six-figure salary." Other ads seeking a "recent college graduate" or "youth-oriented" applicants may send the same message as the more blatantly age-based ads.
While the ADEA does not flatly prohibit such expressions as "prefer retirees" or "prefer older applicants," some state laws may prohibit discrimination in favor of older individuals. For that reason, employers are well advised to steer clear of such direct expressions of age in written solicitations for applicants even when the purpose is to attract older workers. Employers interested in encouraging older applicants should consider the use of age-neutral expressions such as "experience a plus" or "mature judgment preferred."
The Employment Application
Far too often, standardized employment applications actually deter older applicants by directly asking their age or by seeking information that would inevitably reveal their age to a discerning reviewer. While it is not per se unlawful under the ADEA to ask an applicant to specify age (or date of birth), federal regulations provide that employment application forms that request such information will be closely scrutinized to ensure that the request is for a permissible purpose and not for purposes proscribed for the Act. [ADEA} 29 C.F.R ? 1625.5 (1988). Since questions that directly seek the age of the applicant almost invariably deter older workers, the far better practice is to avoid their use on an application form.
Similarly, application forms should be carefully reviewed to ensure that they do not seek other information that would indirectly but inevitably, require the applicant to reveal his or her age. While questions regarding military service, high school and college degrees may be relevant, these inquiries all too frequently require the applicant to specify the date on which the degree was conferred. In many cases, this "proxy" for age is of little or no value to the hiring manager. Inquiries like this should be eliminated unless there is a compelling (and job related) reason for a recent degree.
Important note: This is provided for information only. For specific legal advice regarding whether your employment policies and practices are in compliance with the Age Discrimination in Employment Act, contact an employment attorney.
AARP Resources
AARP's AgeLine Database
AARP's online AgeLine Database is a searchable database including over 65,000 book and article summaries, research reports, policy papers and video summaries. It includes the latest research and information on older worker employment issues and best practices. AgeLine covers literature from 1978 to the present and is updated every two months. Searching is free, but the number of searchers at any one time is limited.
Staying Ahead of the Curve: The AARP Work and Career Study
This AARP study explores the perspectives, desires, fears and work-related needs of older workers today and tomorrow. The results show that 69 percent of these older workers plan to work in some capacity during their retirement years. They work not only for money but also for intangible benefits, such as enjoyment and a sense of purpose. For many (particularly baby boomers), juggling work and personal responsibilities is a pervasive feature of their lives.
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