Are Your Job Postings Potential Targets for Age Discrimination Claims?
It’s 1965. You’re middle-aged and looking for a job. Half of the help-wanted ads you see say there’s no need to apply if you’re age 55 or older. Many other postings — 25 percent, in fact — actually ban applications from anyone over age 45.
According to a Labor Department report produced in 1965, age bias in hiring was exactly this rampant at that time.
Age Discrimination in Employment Act of 1967
The Civil Rights Act of 1964 had just given anti-discrimination protections based on race and sex, and Lawmakers at that time were wondering whether age deserved the same anti-discrimination protections. The unemployment level for older adults was 27 percent in 1965.
So, Congress stepped in and passed the Age Discrimination in Employment Act (ADEA), which President Lyndon B. Johnson signed on Dec. 15, 1967. ADEA protects individuals age 40 and older from discrimination in hiring, firing, and all other terms and conditions of employment.
Examples of Phrases Employers Should Avoid
Although employers have mostly stopped using explicit age restrictions when advertising job openings, language that more subtly discriminates against older workers persists – either by design or out of carelessness.
If you peruse online job postings today, you can find many examples that could potentially expose your company to a possible age discrimination claim. Some examples are:
- Seeking a recent college graduate (or college student) to….
- Many recent college graduates and students are younger.
- 2-5 years of experience required…
- This may imply that you do not want someone older who has 10 or 20 or more years of experience. Instead, you should say 2+ years of experience.
- High energy…
- Younger people may be perceived to be more energetic than their older counterparts.
- Older candidates may be perceived to not be as computer-and-technology literate as their younger counterparts.
If your job postings contain certain language that could be construed as age discrimination, be sure you have the reason to back it up if a claim were to be reported.
Martinez v. Novo Nordisk, Inc.
In a recent case, Martinez v. Novo Nordisk, Inc., the U.S. Court of Appeals for the First Circuit rejected claims under ADEA and state law, finding the employer’s statement that its ideal candidate would have “energy”, be “dynamic”, and possess “stamina” was not evidence of age-based discrimination under the circumstances. The lawsuit was filed by two employees, age 48 and 57, after they were not selected for three newly created jobs.
In upholding the trial court’s judgment for the employer, the First Circuit pointed out that all three of the successful candidates were age 47, and that under established case law, an inference of age bias could not be drawn. The First Circuit also said that because three individuals would be responsible for a territory that was previously serviced by 14, “it was accurate and relevant to describe the new positions as more demanding.”
In summary, employers should ensure that the criteria they are asking for or requiring in a job posting have some rational basis and connection to the job in question.
This article does not represent legal advice. Employers should seek the advice of legal counsel in connection with any questions surrounding compliance with ADEA.
- ASA Staffing Today, May 14, 2021. “ ‘Energy,’, ‘Stamina,’ and ‘Dynamic’ Is Not Necessarily Code for Age Discrimination.” Lexology (04/30/21) Ong, Fiona W.
- AARP.org, “Age Bias That’s Barred by Law Appears in Thousands of Job Listings”, by Kenneth Terrell, AARP, Oct. 30, 2019.
- AARP.org, “Age Discrimination Law Turns 50”, by Kenneth Terrell, AARP, Dec. 14, 2017.
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