Help Wanted: Subtle question about older job seeker's age is not legal

Your resume may be great and, as an Your resume may be great and, as an older job seeker, you may be protected by federal law. But proving age bias is hard. Photo Credit: iStock

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DEAR CARRIE: I'm an unemployed 66-year-old male who is actively searching for a new position. Recently, after three solid telephone interviews with a potential employer, I was invited to the office to meet with several executives. I thought the first three of those interviews also went well. And based on several comments made to me, I expected to join the team.

Then I interviewed with the principal of the company. My hopes faded. After speaking with me for 45 minutes, he asked me if my friends wondered why I hadn't retired yet. I was quite surprised by the question and probably did not respond correctly when I said they knew I preferred to continue working. The interview lasted another few minutes, and he said I would be contacted about the position after additional candidates were interviewed.

The next day, I received a call from the human resources manager, advising me that I was no longer being considered since other candidates better served their needs. Was the subtle question about my age legal? I know there's nothing I can do to challenge the decision not to hire me, but I cannot help thinking that the question should not have been asked. The fact that the company performs consulting services for organizations that provide human resource software applications is also quite disturbing to me. It seems that company should have known better.

-- Ageism in Job Search

DEAR AGEISM: I think your response to the clueless executive was great, especially considering you were caught off guard by his silly -- and illegal -- question. He certainly hinted that he had a problem with your age.

The federal Age Discrimination in Employment Act forbids employers from discriminating against workers 40 and over in every aspect of employment, including hiring. Despite that, age bias in hiring remains common.

"This is a classic problem," said Lewis Maltby, president and founder of the National Workrights Institute in Princeton, N.J.

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Proving the discrimination, however, is difficult without hard evidence.

You could file a complaint with the U.S. Equal Employment Opportunity Commission (or the state Division of Human Rights), and the EEOC will probably contact the employer and ask for an explanation, Maltby said. But the company easily could find ways to justify its decision.

"All the employer has to do is find something job-related where the candidate they hired was stronger," said Maltby, who is the author of "Can They Do That: Retaking Our Fundamental Rights in the Workplace." "It could be more experience, a stronger academic record, a particular accomplishment that Mr. X didn't have, or virtually anything else."

And the reality is that the agency, which enforces statutes prohibiting age bias at companies with at least 20 employees, doesn't have the resources to spend a lot of time on every complaint, he said.

"The EEOC would have to dig deeply to prove that the cover story isn't true, and the staff probably won't be able to spend enough time to do this," Maltby said. "In the end, the employer usually gets away with discrimination in hiring."

On the other hand, he said that when an employer fires someone who is older, the EEOC generally takes more time to look into the employer's explanation.

"But even then, unless the discrimination is obvious or the employer has a pattern of discrimination, the EEOC frequently takes no action," he said.

Despite the odds, Maltby suggests that you contact the EEOC.

"This man should definitely file a claim with the EEOC," he said. "He has nothing to lose."

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