How employers should react to the new age discrimination court ruling

In January, the 7^th Circuit Court of Appeals determined that then 58-year-old Dale Kleber did not get protection against age discrimination from CareFusion as a job applicant.

For employers, there are some important takeaways. Namely, that Kleber v CareFusion does not give employers open season to only hire young workers.

The Age Discrimination in Employment Act (ADEA) protects employees against age discrimination. There are also protections against disparate treatment under ADEA.

Basically, employers cannot intentionally discriminate against aged applicants. When posting a job, that means you should never advertise for someone under the age of 40 when posting job descriptions.

While Federal law may not apply to older applicants, the Texas Labor Code,  for example prohibits discrimination against people over 40 years of age. Employers should be very aware of inequity throughout the hiring process, whether you’re looking at internal or external candidates. You do not want to be a test case for age discrimination.

How can you avoid violating ADEA and other applicable laws?

First, you should work with your legal counsel and HR department to make sure you are following the law. If you are accused of age discrimination, you should talk to your lawyer before responding. It’s a serious complaint that you shouldn’t try to answer on your own.

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Next, go through your job postings to make them age-neutral unless there is a reason for hiring someone under the age of 40. The legal term for this is Bona Fide Occupational Definition. The qualifications can’t be arbitrary. There must be industry standards that determine a definable group of employees cannot perform the job safely.  

Words in applications matter. Don’t ask for GPA or SAT scores. Avoid things like “digital native,” “high-energy,” or “overqualified.” These terms indicate that you’re looking for someone young.  

You should also update application forms that request birthdays or graduation dates. According to the Society for Human Resource Management, you should structure interviews around skill sets, not personal information.

Train those responsible for hiring about the current laws in your state.

Make your managers aware of bias, both conscious and unconscious. It’s not age discrimination that runs afoul of the law, and you must be prepared to confront any situation where it occurs.

Talk about age bias and discrimination in your workplace. Don’t assume that older workers aren’t tech savvy or that they don’t want to keep their skills current. Instead of putting generations against each other, have a multigeneration workplace.

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