Quiz: When Do Comments Turn Into Age Discrimination?

In 2018, Kathryn Moon and Julianne Taaffe got a settlement from Ohio State University after filing a federal age discrimination lawsuit against the school. Their lawsuit stated that their bosses made the “dead wood” and “herding hippos” comments, among other potential ADEA violations.

Lars Sandstrom, a former Army master fitness trainer, was 45 when he interviewed for a job with the Maui County Police Department. They said he was too old to handle the physical training. In 2016 the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing the ADEA, won Sandstrom $24,000 in an age discrimination settlement. “Employers need to be mindful of the negative stereotypes and inaccurate assumptions made about the abilities of older workers,” the EEOC lawyer said.

This is similar to another statement Sandstrom heard when he applied for the job with the police department. “The age discrimination was very blatant,” he said. “There was no attempt to be subtle or any way disguise it. It almost put me back on my heels.”

Unfortunately, some recent court decisions have stated that older job applicants can’t sue under the ADEA for recruiting practices — such as maximum-years-of-experience caps — that are more likely to hurt people like them. In 2019 the Supreme Court declined to hear the case of Dale Kleber, who was 58 years old when he applied for a job with this restriction. The company hired a 29-year-old instead.

Surprisingly, the ADEA doesn’t explicitly ban employers from asking your age. Instead, it prohibits them from making decisions — hire, fire, refuse to promote, etc. — based on that. But businesses generally shouldn’t ask in the first place, because the question could be used as evidence of age discrimination if, say, they chose to hire only younger candidates. The EEOC says it closely scrutinizes such questions to ensure they are being asked for a permissible purpose; AARP believes that these questions should be prohibited altogether.