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Facially Neutral Policies to Protect Against Age Discrimination

Every industry has certain requirements of its employees. You wouldn't hire a baker to do welding, right? So, it would be reasonable for you to exclude bakers from your applicant pool if he or she had no welding experience. However, if you somehow exclude an applicant who is a welder based on his or her age, you could find yourself in trouble. In addition, if a business requirement appears to hinder older workers, but not younger ones, you could find trouble.

Applicants and employees age 40 and above fall into a protected category under the federal Age Discrimination in Employment Act of 1967, and California's Fair Employment and Housing Act, which provides greater protections for aging employees. Employers are subject to the Fair Employment and Housing Act when they employ 5 or more employees.

To protect against an age discrimination claim, your hiring and employment practices should be facially neutral (meaning they do not expressly exclude applicants based on age) and hiring decisions and employment eligibility should be based on reasonable factors other than age.

When creating a policy or facing a claim regarding an existing policy, an employer can use the Equal Employment Opportunity Commission's guidelines, asking whether each factor meets the following:

  • The factor relates to the purpose of your business.
  • You accurately defined the factor.
  • You determined that the factor does not unfairly impact older workers.
  • You determined whether the factor would cause unnecessary injury to workers.
  • You took the necessary precautions to reduce harm.
  • You intend to correctly and fairly apply the factor.
  • Your managers and supervisors received training and support in applying the factor.
  • Your managers and supervisors won't apply the factor in a discriminatory fashion.
  • You limited the subjective opinions of your managers and supervisors.

Acceptable factors need not demonstrate all of these factors. In some cases, even one factor could be satisfactory proof of a valid, neutral policy that does not have a disparate impact on applicants over 40 in an age discrimination claim. However, the more of these requirements that you meet, the more likely your business is to avoid age discrimination claims in the first place.

It may help to know the standard that your business needs to meet, but getting there may be more of a challenge. If you need help creating a policy or procedure with an eye toward ensuring that it does not inadvertently discriminate against older employees or applicants, you may benefit from enlisting the assistance of an employment law attorney.

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