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More employers are learning painful lessons about age bias

"It’s difficult to discuss this sometimes, but I’m working at a tech company and I’m increasingly concerned about what appears to be an age bias in screening and interviewing candidates for jobs. I’m concerned about this youth-oriented culture both for myself as I get farther into my 40s and for other qualified people who are trying to get jobs here. What can we do to prevent this? Not only are we losing out on good talent, but I worry that we are setting ourselves up for some legal problems." 

You have good reason to worry. Age discrimination has become a huge issue for tech companies and for the people who have been applying for jobs at these companies. 

Many companies have been hit with age discrimination lawsuits. One of the most notable cases involved Brian Reid, a former Google executive, who alleged in a 2004 lawsuit that Google routinely discriminated against employees over the age of 40 in recruiting, hiring and other employment practices. Reid, 54, said he was abruptly fired two years after being hired and was told that he was no longer "compatible" with the company’s culture. 

Cultural fit in a youth-oriented company is one issue, and cost is another. Many applicants for mid-level technical jobs regularly complain on blogs and electronic publications that they are being squeezed out in favor of recent college grads and entry-level workers who are less expensive. 

In a major age discrimination case announced last week by the U.S. Equal Employment Opportunity Commission, it filed a lawsuit alleging that AT&T discriminates against older workers by denying them the chance to be rehired solely because they left under early retirement plans. The EEOC says this practice has led to a disproportionate number of older workers not having the same opportunity to apply for re-employment as younger workers. The agency estimated that the early retirement programs affected more than 50,000 people. 

As unemployment has worsened in this recession, the number of age discrimination complaints has increased, rising by 30 percent from 2007 to 2008. Other types of employment discrimination complaints also rose during the same period, but the "most dramatic increase was in age-related complaints," according to a report by the Wall Street Journal. 

What to do? Whenever possible, strongly recommend that the interview process focus on skills and qualifications. 

"In so many situations, I always tell the employers I represent to stick to performance and you can never be wrong," says Sharon Stiller, a partner and head of the employment law group for Boylan Brown Code Vigdor & Wilson LLP in Rochester. 

"Employers need to assess the skills needed to perform the job. If one applicant has better skills than the other, the age of the applicant does not matter in the hiring decision. But the employer needs to be able to point to the legitimate business reason that differentiated among the employees," she says. 

A well-crafted job description can help to avoid problems, she says. "It would also be helpful to provide diversity training for those who are conducting the interviews and making the hiring decisions. They need to know that their assumptions that older workers can’t ‘get it’ stand in the way of good hiring decisions." 

Old and invalid assumptions can be a threat to the hiring process. "Employers may perceive that the employee is ‘old school, overqualified or doesn’t have the requisite skills,’" Stiller says. But the use of those terms can border on age discrimination. 

In a line of older cases, courts held that denying someone employment and indicating that he or she is overqualified is "tantamount to saying they are too old," she says. "If overqualification was to negatively affect performance, then making a decision based on this would not be discriminatory." 

Employers should make sure that untrained workers do not make "stray remarks" during the hiring process (such as that the company is getting rid of its "dead wood") and should ask for samples of the applicant’s work or ask performance-related questions, Stiller says. 

Likewise, they should avoid asking questions that would tend to reveal the age of the candidate, such as when he or she graduated from high school or how old his or her children are, says Steve Modica of the Rochester law firm Modica & Associates. 

It is important to note here that both federal and state laws bear on this issue. 

"Until recently, an unsuccessful applicant for employment could prevail on an age discrimination lawsuit (under federal law) if he or she could show that a candidate’s age was one of what could be multiple factors that motivated the decision not to hire him or her," Modica says. 

However, in a decision praised by businesses, the U.S. Supreme Court changed this rule in the June 2009 case of Gross v. FBL Financial Services, overturning a $47,000 award to a demoted employee of the financial services firm. "In a 5-4 decision, the Supreme Court ruled that age must be the sole motivating factor for a person to prevail on an age discrimination lawsuit. It is not enough to show that age was one of several factors that motivated the salient decision," he says. 

That decision was limited to federal cases alleging age discrimination in employment under Title VII of the Civil Rights Act of 1964, which also prohibits employment discrimination based on race, color, religion, sex and national origin, he says. 

But keep in mind that state Human Rights Law also prohibits age discrimination. "As long as New York law applies, there is a chance that employers can be held liable if age plays any role in the decision not to hire," he says. 

Managers at Work is a bimonthly column exploring the issues and challenges facing managers. Contact Kathleen Driscoll with questions or comments by phone at (585) 249-9295 or by e-mail at [email protected]

08/28/09 (C) Rochester Business Journal. To obtain permission to reprint this article, call 585-546-8303.

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