Avoiding Age Discrimination Claims in Hiring

Workforce Management, August 14, 2007

Employers must prepare for more age discrimination claims arising from the hiring process as the labor pool ages and courts reject traditional legal defenses. Shifts in demographic trends and judicial reasoning have combined to set the stage for a rapid rise in the risks posed by unsuccessful job candidates who fall within the protected class of workers age 40 and older under the Age Discrimination in Employment Act. By Fay Hansen

Employers must prepare for more age discrimination claims arising from the hiring process as the labor pool ages and courts reject traditional legal defenses. Shifts in demographic trends and judicial reasoning have combined to set the stage for a rapid rise in the risks posed by unsuccessful job candidates who fall within the protected class of workers age 40 and older under the Age Discrimination in Employment Act. In 2000, 23 percent of the U.S. population was in the 45-84 age group. By 2010, this portion will rise to 37.2 percent, and by 2020 it will hit 39 percent, according to the U.S. Census Bureau. A new survey from Pew Research found that 70 percent of today’s workers expect to work after retirement. The surge of older workers remaining in or re-entering the workforce underscores the importance of training recruiters and hiring managers to avoid age discrimination charges.In addition, the courts have signaled that they are prepared to entertain a broader approach to age discrimination claims. In February 2007, the U.S. Court of Appeals for the 2nd Circuit put employers on notice that age discrimination claims arising from the hiring process will get a full hearing if the employer’s defense appears to be pretext. In D’Cunha v. Genovese/Eckerd, an older applicant qualified for a pharmacist position in a phone screening but was then rejected in favor of a younger candidate after the face-to-face interview. Eckerd was unable to demonstrate a nondiscriminatory reason for rejecting the older candidate. Juries are aging along with the workforce. "Age claims present unique risks," says Ron Chapman Jr., shareholder at Ogletree Deakins in Dallas. "Every juror can relate to growing old. Juries are more likely to identify with the plaintiff." "We will see a new wave of age-related claims," says Connie Bertram, partner in Winston & Strawn’s Washington office. "Employers need to start thinking about the age spread in various positions and make sure they pay the same attention to age as they do to race and gender in the hiring process." In fiscal 2006, the Equal Employment Opportunity Commission received 16,548 charges of age discrimination, resolved 14,146 charges and recovered $51.5 million in monetary benefits, not including monetary benefits obtained through litigation.
Although there are fewer age discrimination claims than race or gender claims, plaintiffs in age claims are more likely to be successful and the money amounts are generally higher, Bertram reports. She advises employers to adjust any obvious imbalances in the age composition of their workforce and to boost efforts to train recruiters and managers to avoid age discrimination issues in the hiring process.Weakened defense "The potential for an increase in age discrimination claims is rising for two key reasons," says Dominic Messiha, shareholder at Littler Mendelson in Los Angeles. "First, for the past five to seven years at both the federal and state level, court decisions have weakened the defense against age discrimination claims. Secondly, particularly in the retail sector, the decisive shift toward a focus on youth in marketing and sales may lead employers into dangerous territory."

[To see the entire article and related stories, go to: http://www.workforce.com/section/06/feature/25/05/47/index.html ]