THE LAW. The Age Discrimination in Employment Act (ADEA) makes it illegal to discriminate in the work-place against people over age 40 on the basis of their age. The law protects people over age 40 from age bias in hiring, promotion, benefits, pay and termination.
Also, employers must be aware that disabilities are more prevalent among older employees. Under the ADA, you can't refuse to hire or promote a qualified disabled person who can perform the job's essential functions with (or without) a reasonable accommodation.
WHAT'S NEW. The U.S. work force continues to gray. By 2008, 40 percent of U.S. employees will be age 45 and older, compared with only 33 percent in 1998.
As a result, more organizations are making older employees part of their recruiting and diversity initiatives. The AARP Web site includes a "Featured Employer" section that highlights organizations that actively recruit older employees (www.aarp.org/money).
Plus, a landmark U.S. Supreme Court ruling last spring made it easier for your over-40 employees to win age-bias lawsuits against you. The court said employees can file ADEA lawsuits if an employer's policy is disproportionately negative toward its older workers, even if the discrimination isn't deliberate. Essentially, that removed the requirement that em-ployees need to produce a "smoking gun" showing intentional discrimination to prove their case.
HOW TO COMPLY. Employers should examine all policies dealing with hiring, promotion, discipline, pay, benefits and termination to see if they hurt older workers more than younger ones.
Example: Are your help-wanted ads inadvertently causing trouble? You should avoid any age-specific language in ads, such as references to "recent college grads" that would discourage older workers from applying. Ads should list the job's essential functions and the skills and education necessary to perform them. Anything else is dangerous.
The job interview is the first opportunity for face-to-face bias to creep into the process. Sometimes, no words even need to be spoken. For example, employers may unwittingly show bias against disabled people by conducting interviews in an inaccessible location.
Interview sites should be wheelchair accessible and offer handicapped restrooms. When scheduling the interview, explain the process to applicants. For instance, if you'll be administering a test, walk the applicant through that process so he or she knows what to expect and can request a reasonable accommodation, if needed.
The key to avoiding discrimination during interviews is to focus on the applicant's ability to perform the job's essential functions right now. Employers who refuse to hire applicants based on their expected number of working years can find themselves on the losing side in court.
Recently, a supervisor's notes were used as evidence in an age-bias lawsuit. The supervisor jotted, "How long will this person work at this job?" That statement proved to be the turning point in the case.
Employers need to train interviewers to keep an open mind about an applicant's age and disability. Interviewers should never assume an applicant is too old, too ill or too disabled to perform a job. Those de-cisions should only be made with questions about essential job functions and pre-employment testing.
Best bet: To avoid interview pitfalls, write down questions ahead of time and ask each applicant the same questions. Require hiring managers to do the same.
Another approach: Have someone other than the interviewer review the applicant's answers without knowing the applicant's age, disability status, race or gender. Those notes can be compared to the interviewer's evaluation as a double-check against discrimination.
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