Proving age discrimination can be difficult because plaintiffs must ultimately establish that their age was a determinative factor in the defendant’s decision. In other words, if not for the plaintiff’s age, the [adverse employment action] would not have occurred.
In failure-to-hire cases, the burden of proof is especially difficult since the plaintiff may be competing for a job against several other qualified applicants. So there could be any number of legitimate reasons why the employer did not hire the plaintiff.
But, last week, the U.S. Equal Employment Opportunity Commission filed a lawsuit under the Age Discrimination in Employment Act involving a failure to hire that does sound rather compelling. I’ll quote from the press release, and we’ll see if you agree:
According to the EEOC’s lawsuit, [the over-40 applicant] was interviewed for a professional medical sales representative role in 2018. Afterward, [a company] recruiting consultant told [him] he was not selected because the company was seeking “more junior” job applicants. The company then hired a younger candidate instead, although [he] was qualified for the position.
Yeah, “more junior” could have something to do with age. Or, it could relate to experience. But check this out…
Although [the company] claimed [he] was not hired because of salary information he provided when asked during his interview, the company then paid the younger person hired more than the amount it claims disqualified [him].
The EEOC press release stresses that employers should tread carefully when passing on applicants over 40 who may be making mid-career job transitions and often bring valuable prior work experience.
Avoid phrases like “more junior,” “too senior,” or “overqualified” when making hiring decisions. And, geez, don’t tell the older person that they’re demanding too much money only to pay the younger candidate with the same skillset and experience more.
Unless, of course, you like defending age discrimination lawsuits. It is America, after all, a free country, and the choice is yours.
Otherwise, play it smart and take the EEOC’s advice: “Employers should hire the best candidates based on job qualifications, not based on cultural stereotypes about older workers.”