Susan Lessack

Pepper Hamilton LLP
Berwyn, PA
www.pepperlaw.com
lessacks@pepperlaw.com
(610) 640-7806

Susan K. Lessack defends employers in litigation of employment discrimination claims, wrongful discharge claims, and claims under federal and state employment-related statutes, such as the Family and Medical Leave Act and the Pennsylvania Wage Payment and Collection Law.

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Q. Our job application doesn’t ask for the applicant’s age or date of birth. However, we plan to start conducting background checks on job applicants we’re seriously considering. The company that will conduct the checks for us said the birth date is on all the applications they see and that it’s instrumental to conducting the checks. What should we do?

A. As you know, it would be illegal to consider an applicant’s age in deciding whether to hire him or her. While it is not illegal per se to ask an applicant’s age, if the decision-makers have knowledge of an applicant’s birth date, there is a risk that an applicant who is not hired could claim the decision was based on age discrimination.

A better solution would be to request the applicant’s birth date on a separate page of the application that is seen only by the company conducting the background check, not the decision-makers.