Use of Explicit and Implicit Age Indicators

Age discrimination can occur when employers treat employees or potential employees differently because of their age. Sometimes the policy explicitly considers age, such as mandatory retirement policies. Other times, age is addressed implicitly, with factors that serve as proxies for age, such as years of experience.

While the Age Discrimination in Employment Act (ADEA) generally prohibits employers from establishing mandatory retirement or maximum hiring ages for their workers, certain professions are exempt from the law. Among them are air traffic controllers, airline pilots, and public safety workers, including police, firefighters, and prison guards. However, numerous scientific and medical studies do not support a need for this age-based discrimination. In virtually all circumstances, public safety would be better served by periodically testing the fitness of public safety employees, regardless of age, rather than relying on arbitrary age restrictions.

In addition, the law allows mandatory retirement to be imposed on partners, officers, and high-level executives. Some firms abuse this exemption by requiring employees who are “partners” in name only to retire. These policies are not only unfair to those who get pushed out the door purely on the basis of age, but they also tend to impact other employment practices such as hiring and promotion. They allow firms of professionals (e.g., law, accounting, and consulting firms and medical practice groups) to ignore the ADEA in their businesses, eroding respect for laws against age bias.

Another questionable practice that explicitly brings age into workplace decision-making is asking for applicants’ date of birth or date of graduation on job applications, particularly in online systems. With this information, employers can screen out older workers. Current regulation from the Equal Employment Opportunity Commission states that requests for such information on employment applications do not necessarily violate the ADEA but will be closely scrutinized to ensure that the requests are for a permissible purpose.

Some elements of the job application process, particularly with the use of online listings and applications, can also have an adverse effect on older workers even though they are not based explicitly on age. Employers may use factors that are correlated with age, such as salary history or number of years of work experience, to determine applicants’ ages and make decisions on their candidacy. Such criteria arbitrarily and disproportionately exclude older workers based on assumptions about whether they will “fit” in a particular job without interviewing them or otherwise examining their specific qualifications for the job or motives for applying. 

An issue of increasing importance is the application of the ADEA to hiring on social media and other digital platforms.  Regrettably, compliance with age discrimination and other civil rights laws badly trails the growing dominance of job search and recruitment by social media platforms. For example, in late 2017 a group of older workers sued major employers for using social media giant Facebook to look for job applicants only within specific age limits. The plaintiffs said that Facebook excluded users above certain ages from getting job ads, advised employers how to place such ads, and then generated new batches of ad recipients based on the demographics of the respondents to the initial age-biased pool of Facebook users.