U.S. Employers paid $240 million in age bias lawsuits since 2000, according to a survey by GoodJobsFirst.org.
Note: Most age discrimination lawsuits relate to The Age Discrimination in Employment Act (ADEA) which forbids age discrimination against people who are age 40 or older. It does not protect workers under the age of 40, although some states (see below) have laws that protect younger workers from age discrimination.
Age bias in the workplace can start with your job descriptions/job postings. That’s often your first communication with a candidate — the person who can later turn into a plaintiff.
Here are 6 ways to avoid age bias in your job descriptions:
1. “Digital Native” Could be Age Discrimination
Words like “young” are problematic. So is “digital native” as it suggests you only want to hire someone who’s grown up in the computer/Internet age.
Tip: Instead of Digital Native, your job description should spell out the skills you need (familiarity with video games)
2. “Recent College Grad” or “Young” Could be Age Bias
If your job description mentions wanting a recent college grad or someone “young and energetic”, that could be asking for an age discrimination suit.
3. Capping The “Years of Experience” Could Get You Sued
In 2014, CareFusion was looking for a Senior Counsel, Procedural Solutions. They likely didn’t think much about one line in their job posting that said the applicant needed:
“3 to 7 years (no more than 7 years) of relevant legal experience”
Plaintiff Dale E. Kleber, a 59 year-old with 25 years of experience, applied.
Kleber, a resident of Hinsdale, Illinois was not granted an interview and sued CareFusion under the Age Discrimination Employment Act (ADEA), 29 U.S.C. §§ 621-634.
Kleber won an initial ruling in April 2018.
In January 2019, CareFusion won on appeal (an appeal judge ruling that the ADEA covered employees only (and not candidates).
But this was horrible press for CareFusion, not to mention wasted time and money.
Tip: Avoid putting caps on years of experience. Instead, focus on the skills you need.
For example, if you think you need an attorney with 3 to 7 years experience, focus instead on the skills that you’re envisioning that less experienced candidate having. For example, you might need them to be a master at Google Docs or some new legal tech tool.
4. States Have Different Age Discrimination Laws Too
Federal laws aren’t the only ones to worry about.
Michigan has the Elliott Larsen Civil Rights Act. This Michigan age applies to any kind of age-based discrimination, whether it is discrimination against the young, middle-aged, or the more mature. Note: this differs from the Federal Age Discrimination in Employment Act which protects workers age 40 and over.
5. UK-Only: “X Years of Experience” Might be Age Bias
In the U.K., it’s a lawsuit by a younger candidate you have to watch out for. The Equality Act of 2010 (and the Employment Equality (Age) Regulations 2006 before it), protects candidates/employees in many ways.
One protection points out, for instance, that if your job advert requires XX years of experience, that a younger candidate might be unlawfully excluded because they may have mastered that skill in fewer years.
6. What You Leave Out of a Job Description Might Get You Sued
Sometimes it’s what you didn’t say in your job description that gets you in hot water. If, for example, you fire an older worker for not being savvy at social media, you’d be better protected if your job description had mentioned: “expertise in social media required.”
Why I wrote this?
I’m passionate about job descriptions. Ongig’s job description software enables you to be inclusive to avoid unconscious bias related to age, gender, race, disability or other exclusionary practices. Ping us for a demo to see how Ongig does it!