Are your hiring practices overtly (or covertly) discriminatory?

Posted March 26, 2018

By Katie Loehrke, PHR, editor, J. J. Keller & Associates, Inc.

In 2009, a U.S. Supreme Court decision (Gross v. FBL Financial Services) made it more difficult for employees and applicants to prove age discrimination.

In Gross, the Supreme Court indicated that a plaintiff must show that age was the “but-for” cause of the employer’s action. This standard requires showing that age was more than a motivating factor, but a deciding factor: That if not for the individual’s age, the employer would not have taken the adverse action against the employee or applicant.

Some individuals, including those appearing before the Senate Special Committee on Aging in December, believe that Gross created too much space for a certain amount of age discrimination to legally exist. Leaders of the committee have questioned why the burden is higher for employees to prove age discrimination compared to discrimination based on gender, religion, or race.

At the hearing, representatives from the American Association of Retired Persons (AARP) noted that age discrimination is not only a continuing issue, but that evolving employer practices are leaving room for discrimination.

Are you leaving older workers out?

Employers may not always realize how their practices tend to exclude older workers. For instance:

  • Seeking digital natives. Requiring prospective employees to be skilled in certain technologies is one thing, but requesting that only “digital natives” apply excludes older workers entirely. (Digital natives are individuals who have had the Internet/technology in their lives from a young age.)
  • Relying on college recruiting. Conducting recruiting fairs at college campuses isn’t discriminatory in itself, but employers that lean heavily on college recruiting will see an imbalance of younger vs. older applicants. Of course, employers don’t have to go to a college job fair to skew numbers. Posting jobs preferring “recent college graduates” will have a similar effect.
  • Capping years of experience desired. This practice may be intended to ensure applicants’ salary expectations are in line with what an employer is willing to pay or to ensure an employee isn’t overqualified. However, discussing concerns about salary or the potential for growing out of a role is a better strategy than refusing to consider more seasoned (and often older) applicants.

While employers should keep an eye on these types of potentially discriminatory practices, a report from the Senate Special Committee on Aging also reminds employers of the benefits of supporting older workers. According to that report, “Employers that do not acknowledge and prepare for the changing demographics of the workforce may find themselves at a competitive disadvantage when it comes to attracting and retaining talented workers.”

The key to remember is this: Age discrimination continues to be a problem in U.S. workplaces, so employers must regularly examine their practices for evidence of bias.

About the author:

Katie Loehrke

Katie Loehrke is a certified Professional in Human Resources and an editor with J. J. Keller & Associates, a nationally recognized compliance resource firm. The company offers a diverse line of products and services to address the broad range of responsibilities held by HR and corporate professionals. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J. J. Keller’s Employment Law Today newsletter and its Essentials of Employment Law manual. For more information, visit www.jjkeller.com/hr and www.jjkellerlibrary.com. View Katie’s LinkedIn profile.