October 17, 2006 > Watercool Counsel

by Rich Proulx

Q: For purposes of background checks, I request the birth date of applicants for jobs with my business. The other day, a prospective employee told me that this was illegal. I'm not a big employer and don't have the luxury of a company attorney. Is this really illegal?

Hesitant in Hiring
Milpitas

A:  This is a great question and there are actually a lot of myths out there about the birth date issue.  There is nothing in the Federal Age Discrimination in Employment Act which prohibits asking for dates of birth from applicants. However, some states do have laws that prohibit asking this question. Even if it is not against the law in your state as EEOC Investigator Malinda Tuazon explained, these kinds of inquiries may deter older workers from applying for employment and may raise flags for other prospective employees or the EEOC.

Because requests for age information could be closely scrutinized to make sure they are made for legitimate, lawful purposes, it is recommended that you consider whether you really need that information before you put it on an application. Another thing not all employers realize is that it is illegal to use language in ads that could deter older applicants because they believe they wouldn't be considered. Some of the most common mistakes include asking for "recent college grads" or people looking for an "after-school job."  Exceptions to this part of the law exist, but only in situations where an employer can justify that the language is used for legitimate business purposes; for example, if a talent agent is looking for "twenty-something looking" actors. That means this wouldn't exclude an individual over 40 who's lucky enough to still look like a twenty-something!

Q:  I recently applied for a promotion which would require me to go to training. My supervisor told me he would love to put me into the position, but that the company didn't think it was worth sending me to training because I will probably retire soon.  I'm only 62 and I have absolutely no plans to retire.  Are they allowed to do that?

Passed Over and Peeved
Newark

A:  Uh oh! Sadly, yours is not an uncommon situation even in today's workforce.  What many employers don't realize is that it's not up to them to determine your career or retirement plans for you. In determining the most qualified applicant for a given position, an employer should compare the candidates' aptitude for the position and leave age out of it. As EEOC District Director Joan Ehrlich stated in a recent press release touting their settlement with the City of San Jose who allegedly denied a promotion to a qualified 72 year old employee: "many employers today find it necessary to continue to work into their late 60s and 70s -- not only for their economic needs, but because they find work challenging and rewarding."

Our team of government experts won't retire until we've answered your questions.  According to the Bureau of Labor Statistics, the number of workers aged 55 and older will grow by almost 50% by 2014, while the entire labor force is projected to grow by only 10%! Send your questions to Watercooler.Counsel@eeoc.gov. Rich is a former Supervisory Investigator for the Equal Employment Opportunity Commission www.eeoc.gov. Identifying information in the questions may be fictional.