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Employers and the Age-Old Question: Can They Ask How Old You Are?

Updated on December 14, 2017
TeriSilver profile image

As a journalist, Teri strives to educate and disseminate information. She will always tell you, "there's more to the story."

Can Potential Employers Ask Your Age?

It can be confusing … is an employer legally allowed to ask you, the applicant or worker, about the year you were born or how old you are? Well, the answer is “yes.” And “no.” But really “yes” and kind of “no.” And in some cases, it depends on, um, how old you are. Federal law covers workers over the age of 40 but it does not protect those who are younger than 40. Some states, though, do have laws that protect younger workers from age discrimination.

Age Discrimination

The Age Discrimination in Employment Act of 1967 (ADEA) protects workers who are 40 years of age or older. According to the United States Equal Employment Opportunity Commission, the ADEA prohibits employers from firing or refusing to hire any person with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.”

The ADEA also prohibits an employer from classifying his/her workers or reducing wages based on a claim of ("old") age. Employment agencies and labor unions fall under this act, too. The law specifically applies to age issues, however, related concerns may be open to interpretation. It is NOT illegal, according to the ADEA, for age to be considered when it is “a bona fide occupational qualification reasonably necessary to the normal operation of the par­ticu­lar business.”

Is it Unlawful for an Employer to Ask Your Age?

The short answer is, “no,” the age discrimination law does not specifically bar employers from asking the age or birth year of an applicant or employee. However, these requests are open to scrutiny for determination on why the inquiry was made. If an employer wants to know how old a job applicant or previously-hired worker is, the reason for the inquiry must be provably valid and not one that would violate provisions of the United States’ Age Discrimination in Employment Act. Age discrimination lawsuits are often filed to determine the validity of these claims.

It Is Illegal To …

It is illegal for employers to discriminate against or harass workers when it comes to hiring, firing, layoffs, promotions, job assignments, training, benefits and compensation. It is also illegal to retaliate against someone who files an age discrimination charge or assists in the investigation process. Employers are prohibited from: Creating job advertisements which specify age preferences, setting training programs with age limits and, in general, forcing employees into age-related retirement. The ADEA applies to businesses that employ 20 or more workers — including state and local governments — in addition to labor unions, employment organizations and the federal government.

What IS Legal

The law does allow employers to favor workers age 40 or older, even if actions negatively affect other employees who are also 40 and up. Employers may establish legitimate age qualifications for specific job needs. For example, if a talent agency or production company recruits people to audition for an acting role, the employer can determine the age range for the actor so that he or she can play the character.

Can You Prove It?

Age Discrimination is often considered a matter of opinion, but if you think your claim is valid, you must prove it to the U. S. Equal Employment Commission. If discrimination is proven, the commission may require the employer to provide a job and/or back pay in addition to covering attorney’s fees and court costs. The commission could also require the employer to pay punitive damages.

If you have concerns about possible age discrimination, contact the United States Equal Opportunity Commission for more information; links are below. Attorneys who specialize in age and other discrimination cases may determine possible causes of actions.

© Copyright by Teri Silver, 2011. All Rights Reserved


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