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Feb01

Help Wanted Ads and Age Discrimination

I have a very small company, 2 employees, who work 98% of the time with seniors who are 65+ years old. I want to hire a receptionist who is at least 50+ years old. I want to actively encourage seniors to apply for the job. Is it illegal to encourage seniors to apply by stating:

Receptionist: Retirees wishing to reenter the work force are encouraged to apply.

Thanks,
Eric

The answer to this question will depend upon which state the business is in.

Federal law prohibits discrimination against workers over 40. The ADEA, Age Discrimination in Employment Act, prohibits discrimination against workers over the age of 40 based on age. It covers all areas of employment including hiring, promotions, pay, working conditions and terminations. It applies to employers with 20 or more employees.

Until recently, the Equal Employment Opportunity Commission ruled that the ADEA meant that older employees must be treated the same as younger employees. Recently, after a Supreme Court decision, the EEOC has ruled that sometimes it’s acceptable to offer preferential treatment to older workers. However, so far all the rulings involve better benefit plans being offered to older workers.

So while this ad may be legal in most states, it might not be wise to run it with that wording. While it may be legal, most employers don’t want to be the test case to prove it.

If an employer is collecting information on an applicant’s age, it also opens the employer up to charges that he or she is discriminating against people who are over 40.  If the employer asks applicants their ages, and then hires someone who is 50 rather than someone who is 65, that may well appear to be age discrimination. That’s why most employers won’t allow an applicant to say how old they are, until after they are hired.

A few states do have laws that prohibit age discrimination against younger people. In Kansas, for example, it is illegal to discriminate in employment against anyone who is over 18. In New York, employment advertising targeting any one age group is illegal discrimination.  

In other states, another way to accomplish this would be to simply accept applications from people in all age ranges, and only interview those who appeared older. Again, this tactic would be a violation of age discrimination laws in some states.  

Some tactics will be legal in all states. To be on the safe side, it might be wise to word the ad differently. For example, the ad might mention that applicants with 20 years or more of work experience are preferred. It’s probable that anyone with that much experience will be older, especially if they took some time off for family or retirement. Generally, requiring extensive experience is seen as a legitimate hiring tactic, while discriminating based on age is not.

A discrete “retirees welcome to apply” or “retirees encouraged to apply” in states where it is legal, might work better. But bear in mind that many people between 50 and 70 are not retired, so this tactic might backfire. At the very least, change it to “senior citizens are welcome to apply.”

Another tip: the employer might also consider hiring two part-time workers rather than one full-time person. That’s because most retirees don’t want to lose their Social Security or pension benefits, by working full time. However, usually working part-time provides added income, without endangering those benefits.

Another option would be posting ads or flyers at local senior centers, YMCAs, diners or other areas where seniors congregate.

The employer might also consider being flexible on the age range for candidates. Some young people are extremely patient and have a lot of experience with older people. And, seniors sometimes enjoy being around someone who is young and energetic. Perhaps this could be mentioned in the ad as, “Rapport with older people and experience working with senior citizens is a plus.” After all, those are the most important qualities for the position.

For a more specific answer, post a question mentioning your state.

This entry was posted on Friday, February 1st, 2008 at 9:50 pm and is filed under
Hiring and Staffing, Human Resources Management.
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One Response to “Help Wanted Ads and Age Discrimination”

  1. employment discrimination legal complaints Says:

    Pretext exists where the ostensible reason for the employment decision is really a lie contrived to mask unlawful discrimination. . . . This circuit adheres to the honest- belief rule: even if the business decision was ill- considered or unreasonable, provided that the decisionmaker honestly believed the nondiscriminatory reason he gave for the action, pretext does not exist. . . .

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