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Navigating Problem Areas of the Age Discrimination in Employment Act

The Age Discrimination in Employment Act (ADEA) is very simple in concept. But it requires that employers examine all of their practices to be sure that they are age-neutral. Compliance begins with the employer's first contact with a prospective candidate and lasts through discharge or retirement.

To steer clear of age discrimination claims, be vigilant about these problem areas of the ADEA: job ads and applications, interviews, promotions and demotions, harassment, terminations, layoffs, and retirement.

ADEA Hotspots

Advertising: Before the ADEA, it was not uncommon for employers to include maximum age requirements in their advertising: "No one over 35 need apply." But since the enactment of the federal law, employers know that such blatant ageism isn't legal. Yet job ads may have other, more subtle language suggestive of age bias that can land an employer in court: "young and energetic worker;" "recent college graduates only;" "youthful work environment."

Interestingly, the ADEA does not prohibit phrases such as " prefer retirees " or " seeking older applicants. " A 2007 EEOC rule clarified that employers can create employment ads specifically targeting older workers. However, some state laws do prohibit such advertising, so proceed with care. If you want an older candidate, consider such age-neutral expressions as " experience a plus " or " mature judgment preferred. "

The application: If an employer is accused of age bias by someone who is turned down for a job, the questions asked on the application and in the interview will be scrutinized for evidence of discrimination. Therefore, the application should focus on job-related experience and qualifications. It's not illegal to ask for the candidate's date of birth, graduation from high school, college or beyond. But employers who request this information on application forms will, if asked, have to prove that this data was sought for a legitimate purpose. You may request employment history that includes dates, however.

The interview: Focus on experience and keep the questions job-related - period . It's not illegal to ask "How old are you?" but it can be problematic and put you on the defensive. Interviewers should also avoid telling a candidate he or she is overqualified (which can be code for "too old") or hinting that the applicant may not "fit in with all the Generation Xers at our company." Similarly, don't bring up a prospect's retirement plans, or think out loud about whether they'll stay long enough so that training them will pay off. Such statements can provide clues that age discrimination has taken place.

Part-time work: It's acceptable to fill part-time jobs with older workers but not at the expense of denying them full-time work if that's what they want. To head off an ADEA issue, ask all applicants if they'd prefer part or full-time work. In other words, what you offer to one demographic must be offered to all. Train managers who do the recruiting on the questions they must avoid.

Promotions and demotions: Again, provide a level playing field. When it comes to advancing or demoting someone, make sure that both older and younger workers are treated strictly on the basis of their credentials, not their age. Promotions should be justified by documentation in the employee's personnel file showing that the chosen candidate merits the job action over a rival. Create specific position statements for every job so you can rely on the match between the employee's qualifications and the requirements of the job.

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