Q: For purposes of background checks, I request the birth date of applicants for jobs with my business. The other day, a prospective employee told me that this was illegal. I’m not a big employer and don’t have the luxury of a company attorney. Is this really illegal?
-Hesitant in Hiring
A: This is a great question and there are actually a lot of myths out there about the birth date issue. As San Francisco EEOC Investigator Malinda Tuazon explained, there is nothing in the Age Discrimination in Employment Act which prohibits asking for dates of birth from applicants.
However, these kinds of inquiries may deter older workers from applying for employment and may raise flags for other prospective employees (or the Equal Employment Opportunity Commission). Because requests for age information could be closely scrutinized to make sure they are made for legitimate, lawful purposes, it is recommended that you consider whether you really need that information before you put it on an application.
Another thing not all employers realize is that it is illegal to use language in ads that could deter older applicants because they believe they wouldn’t be considered. Some of the most common mistakes include “recent college grads,” “after-school job,” and “supplement your pension” (because this could deter applicants who are over 40, but not old enough for retirement). Exceptions to this part of the law exist, but only in situations where an employer can justify that the language is used for legitimate business purposes.
Q: I recently applied for a promotion which would require me to go to training. My supervisor told me he would love to put me into the position, but that the company didn’t think it was worth sending me to training because I will probably retire soon. I’m only 62 and I have absolutely no plans to retire. Are they allowed to do that?
– Passed Over and Peeved
A: Uh oh! Sadly, yours is not an uncommon situation even in today’s workforce. What many employers don’t realize is that it’s not up to them to determine your career or retirement plans for you. In determining the most qualified applicant for a given position, an employer should compare the candidates’ aptitude for the position and leave age out of it. Many employees continue to work into their late 60s and 70s—not only for their economic needs, but because they find work challenging and rewarding.
According to the Bureau of Labor Statistics, the number of workers aged 55 and older will continue to grow until it reaches 25% of the workforce by 2024.