Can Employers Ask How Old You Are?

Would it be illegal if a recruiter asked, "How old are you?" If you are like the majority of age 50+ job seekers, I'll wager you answered with a confident "yes." Surprisingly, it is not illegal to ask a candidate their age. Not a good idea perhaps, but not illegal. While it may fly in the face of what you know about the Age Discrimination in Employment Act (ADEA), the question itself is legal. What would be illegal is to use your age as a factor in any hiring or employment decisions. Seems like too fine a point? Well, like so much of antidiscrimination law, there are very lines between illegal behavior and illegal behavior that can be proven.

Be Prepared

How would you react if a recruiter asked you your age? While you may not be asked this precise question when pursuing work in retirement, you should know in advance of a phone or in-person interview, how you'll react and what you'll say. So much of what we believe or "know" about age discrimination is vague and often ambiguous - and bad news for age 50+ workers. Most of all, our opinions about age bias will influence our behavior during a job search and when employed. It's important to understand the principles of age discrimination law, but more important to understand how to deal with it.

Age bias in hiring and employment may be the last socially acceptable form of discrimination. While the ADEA makes age-based discrimination in hiring, pay, benefits, training, advancement and termination illegal, many people over the age of 50, and increasingly 40, believe that age bias still exists and affects them. Various surveys and research indicate that between 80% and 95% of people over age 50 believe that "age bias is a fact of life." The published statistics about age discrimination claims unfortunately don't support common perceptions about the actual extent and power of age bias.

What Do You Believe?

Rather than debate whether age discrimination is perception or reality, let's focus on what you can, and what you can't do to cope with concerns about age or length of work experience during a job search or in holding on to your current job. Normal job search anxiety is exaggerated by our fear, perhaps certainty, that we will confront age bias. Anticipation of age bias prevents age 50+ job seekers from mounting our best effort.

First, let's examine your age bias belief level. Be honest and ask yourself if you answer these statements with a "yes".

1. "My application or resume is never acknowledged"
2. "The interviewer was young enough to be my child - they don't value my experience"
3. "I'm passed over for additional training that I need to stay current"
4. "The jobs always go the young, good looking people"
5. "The minute they looked at my gray hair, I knew I had no chance"
6. "The promotions go to the young up-and-comers and experience is ignored"
7. "I was laid off and within a month a young person was hired to do my job"
8. "Whenever there is a layoff, the oldest go first"
9. "Employers will say that I'm overqualified and become bored with the job"
10. "I've heard comments about the "dinosaurs" and "old people" being in the way"

How did you do? Count your "yes" answers.

One to three — You're the CEO, you're not 40 yet, or you don't talk enough with co-workers

Four to six —You're on you're way to be convinced that you've been targeted for discrimination

Seven or more — You're a true believer and a pretty safe bet your behavior and outlook will be adversely affected by your age bias concerns.

I'm not trying to make light of concerns about age bias. I am trying to get you to think about what you can and cannot do about the reality, or self-fulfilling perceptions, of age bias.

Five Things You Can and Can't Do About Age Bias

Let's start with five things you can't do about discriminatory employer behavior or decisions:

You Can't Compel Employers to Communicate

Stop thinking it's you or something you did (or didn't do) to hear nothing from the employer you applied to. Contemporary recruiting practices seldom provide information to applicants — no acknowledgement other that an "auto-reply" message; long delays or no invitation to interview; no feedback following interviews; and no explanation or notice of rejection. The sheer volume of applicants combined with electronic communications can feel impersonal. Employers have become extremely cautious about what they say to candidates and employees. Stop expecting promptness and responsiveness — it's up to you to be persistent.

You Can't Dictate Your Employer's Employment Decisions or Behaviors

Managers and executives will generally make decisions about hiring and firing based on the financial condition of the organization. This will often lead them to make staff reductions based on financial factors. Now this may not seem fair, but here's the deal — older, and long service employees often are better paid than younger co-workers and their healthcare and retirement income costs may be higher. Employers may decide to lay off more costly employees. This is permissible as long as age is not the basis for the decision. This brings up the question of "early retirement" or "early out packages." Being offered "a package" can be a heart-rending situation. Regrettably, accepting such an offer often brings a "release of liability" clause prohibiting you from later bringing a financial claim suit for age discrimination. The best you can do is get advice and think long and hard before accepting or rejecting.

You (Generally) Can't Challenge Management's Authority to Make Decisions

Unless you have sufficient evidence or cause to believe that age played a part in promotional decisions, the law preserves management's authority to make employment decisions. You may not agree, you may not like it, you may have been passed over for advancement — there's not much you can do other than file an age discrimination complaint or claim. This is not an action that will endear you to your employer but is often your only recourse other than grinning and bearing.

You Can't Challenge (Legitimate) Job Requirements

Employers are permitted to establish "bona fide" (legitimate and real) job qualifications and they can even refer to age. Example — An advertising agency can require that a model for teen's clothes not be older than a given age. Employers are generally very careful about setting job qualifications — and they may appear to be discriminatory. Work in a grocery store may require "the ability to routinely lift packages up to 60 pounds." There are cases when you can request a "reasonable accommodation" to permit you to perform the job, but this is generally the only way around job requirements. Look for a different job.

Industry Patterns and Company Cultures

Laws and management principles notwithstanding, there are certain industries and companies that are historically, culturally (and possibly financially) predisposed to favor younger workers. You can lament and complain about this situation, but the practical thing to do is consider other industries or occupations, or find that exceptional employer that values employees for their capabilities and contributions, regardless of age.

How to Avoid or Overcome Age Bias Know Your Rights

Become familiar with the fundamental rights provided by federal and state ADEA laws. You may choose to not always pursue or enforce these rights, but you should know what is, and is not permissible. Refer to this AARP explanation of your rights under the ADEA.

Be Clear on Your Objectives

Examine your personal and work life, and inventory your knowledge, skills, capabilities, and achievements. Get some career advice and select the occupation or profession in which you are most apt to prosper. Consider what you most enjoy doing. Identify specific employers and know just the type of job you want. Get it all down in a clear and concise resume. Your clarity and confidence of purpose will come through to employers.

Be At Your Best

This may sound a little silly, but look and be at your best. Splurge on a new interview outfit (even if that 30-year old suit still fits); be well-groomed; maintain your personal fitness to the highest possible level; make sure health and medical conditions are under control; be well-rested; research the employer and display your knowledge; be confident and poised; practice for interviews with a friend or professional; and finally, put all concerns about your age and the threat of age bias out of your mind. Incidentally, don't let up if you're already employed — do your job as well as you can.

Be a Continuous Learner

Whether you are a candidate or employee, always be growing and learning. This is particularly important for your computer skills and knowledge. Ability to use a computer, use email, perform internet research, and handle basic applications such as word processing are not optional anymore. Inability to make even basic use of a computer is a cause for rejection in all but a handful of jobs — many of which you wouldn't want. Buy a computer, set up an internet account, and take lessons. While you're at it, arrange for a mobile phone. PC skills and a cell phone are powerful ways to show you are "tech-savvy" and not a dinosaur.

Look and Work in the Right Places

Many industries and employers are aware of the value of older workers. Search them out and apply for work. If you're already working for an age friendly employer, do everything you can to hold onto the job.

It might be a tired old saying, but relating to age bias, "know the things you can change, the things you can't, and the wisdom to know the difference."

Let us know in the comments: Has an employer discriminated against you because of your age?

This post originally appeared on RetirementJobs.com