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. Factors such as years of experience serve as proxies for age.

The Age Discrimination in Employment Act (ADEA) generally prohibits employers from establishing mandatory retirement or maximum hiring ages. However, certain professions are exempt from the law. Among them are air traffic controllers, airline pilots, and public-safety workers, including police, firefighters, and correctional officers. Numerous scientific and medical studies find no need for this age-based discrimination. 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 unfair to those who get pushed out the door purely on the basis of age. 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. The practice erodes respect for laws against age bias.

Another questionable practice is asking for applicants’ date of birth or date of graduation on job applications. This explicitly brings age into workplace decision-making and is particularly an issue 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 they will closely scrutinize the practice to ensure that the requests are for a permissible purpose.

Some elements of the job application process, particularly online listings and applications, can also harm older workers even though they are not based explicitly on age. Employers may use factors correlated with age, such as salary history or years of work experience. This information can be used to determine applicants’ ages and make decisions on their candidacy. Such criteria arbitrarily and disproportionately exclude older workers. And they are based on assumptions about whether they will fit in a particular job. These assumptions are made without interviewing them. They also do not otherwise examine the applicants’ specific qualifications for the job or motives for applying.



Mandatory retirement

Federal and state laws should prohibit maximum hiring ages and mandatory retirement ages for all workers. This should include public-safety employees. Qualification for employment should be based on competency and fitness rather than age.

The Equal Employment Opportunities Commission (EEOC) should proactively investigate and closely scrutinize employers that maintain mandatory retirement policies. State and local fair employment agencies should also monitor employers with such policies. Those practices should be challenged in appropriate cases.

Age indicators in the job application process

Policymakers should strengthen regulations to prohibit inquiries about age and date of birth in job applications. Online application systems should not require entry of this information in order to submit the form. Requests for such information should be presumed illegal unless the employer can demonstrate job-relatedness.

EEOC regulations should clearly state that any job posting or recruiting efforts that directly exclude or have a disparate impact on older applicants are illegal under the Age Discrimination in Employment Act. Such practices include preventing older job-seekers from seeing job ads and specifying qualifications (such as “digital natives,” “recent college grads,” or maximum years of experience) in ways that will have a disparate impact based on age.

Policymakers should prohibit employers from asking for prior salary history during the hiring process.

Disclosure of age data

Companies should disclose age data on their workforce and for new hires. Companies should be encouraged to adopt a standardized reporting format, which ideally should include the following age categories <30; 30 to <40; 40 to <50; 50 to <60; 60 to <70; and 70 and older.