December 14, 2023

Consultant Makes it Rain $90K Against Client-Employer for Age Discrimination

The Age Discrimination in Employment Act (ADEA) covers employers with 20 or more employees. It prohibits discrimination against individuals age 40 or above. You have two applicants: one is age 49, the other is age 41. If you hire the 41 year-old, can you violate the ADEA since both are over 40? The EEOC and courts say, “Yes.”

That is the short story. This case could have been avoided!

Lessons Learned #1.  How did the employer know the applicant’s age? The applicant had it on his resume! Using employment applications exclusively can help you control what information you do (not) obtain from applicants. If you ask about educational attainment, whether it is high school or college, do not include a request for the date of graduation or date that the degree was obtained. In addition, include an express notice to applicants that providing any unsolicited information, including a resume, may result in rejection of the application from further consideration. This practice has some practical benefits in union avoidance, too. Ask your company’s labor counsel about that.

Lessons Learned #2. The candidate was not interviewed by any company HR representative or management team member. Nope. The employer engaged an external consultant to conduct this search, including pre-screening interviews. The consultant:

  • decided whom she would pass on to the client-employer for further consideration;
  • did not pass the 49-year-old candidate on to the client; and
  • wrote in her email reply to the candidate regarding his non-selection, that the company, “was looking for someone more junior…that can stay with the company for years to come.”

Tip. Look at the contract you have with your talent acquisition providers/recruiters. Talk to your liability insurance carrier. Consider what language you want to include in your agreements to address the third-party’s liability for their actions that give rise to legal claims.