The controversy over whether an employer has the right to ask a potential candidate about their age during an employment interview has raged for at least a couple of decades. Some people claim it is absolutely illegal to ask about age. At the other end of the spectrum, people argue that no legal prohibition exists at all. The truth lies somewhere in between these two extreme positions for Utah employers.
The following article briefly describes the Federal law with regard to employer inquiries based on age, including the ADEA, and compares the federal law to Utah’s state laws against discrimination in employment based on age.
What Does the Age Discrimination in Employment Act (ADEA) Provide?
The ADEA is a 1967 U.S. labor relations law that prohibits discrimination in the workplace based on age for individuals age 40 and over. It does not protect employees under age 40. It may surprise you to learn that the Federal Age Discrimination in Employment Act of 1967 (ADEA) does not explicitly bar asking about age during the hiring process.
The provisions of ADEA are codified in 29 U.S.C. §§ 621–634. The law applies to employers with 20 or more employees. Employers that come within the law’s jurisdiction include state and local governments, employment agencies, labor organizations, and the federal government.
The terms of the ADEA do not expressly forbid employers from asking about a prospective candidate’s age. In fact, an employer may ask about a prospective employee’s age on an employment application provided that the employer’s request:
- Reasonably relates to the employer’s core business; and
- On an individual basis proves impractical or pointless.
If the employer meets the above conditions, the employer may hire, fire, or take other age-related actions regarding the terms, conditions, and privileges of employment that impact an employee over age 40. In practice, the rule generally applies to the employment of firefighters and law enforcement officers. In other words, the employer must have a convincing reason for asking about your age, such as the safety reasons inherent in these dangerous jobs.
If Asking About Age Is Legal, Does that Preclude a Discrimination Lawsuit?
No. While inquiring about age within the limited exception described above is legal, the inquiry may yet form the basis for a discrimination lawsuit based on age. To prove an age discrimination case, the plaintiffs must prove:
- They are members of the protected class (over age 40);
- Their job performances were satisfactory;
- The employer took an adverse job action against them; and
- The employer treated similarly-situated and significantly younger employees more fairly.
Typical situations where age discrimination arises in the employment sector include:
- Firing older workers or offering buyouts while continuing to hire younger workers;
- Reassignment to disagreeable tasks;
- Uncomfortable comments about an employee’s age;
- Cessation of raises for older workers; and
- Poor performance reviews for older workers.
What Does Utah Law Say?
The Utah Employment Selection Procedures Act is an anti-discrimination employment law. This labor law proscribes the circumstances when an employer asking about age is illegal. These rules are described in Utah Code 34-46-101 et seq. ESPA applies to employers with 15 or more employees. The Act prohibits employers from soliciting the following information before offering the candidate a job:
- Social Security number;
- Date of Birth;
- Driver’s License number.
What are the exceptions to the Employment Selection Procedures Act?
An employer may request the above information before a job offer if the employer:
- Requests the information from all applicants for the job sought;
- Solicits the above information at the same time the employer conducts a check regarding the applicant’s background, credit history, and driver’s license record; and
- The candidate consents to the request.
How Are Employers Restricted from Using Age Information?
Utah’s Employment Selection Procedures Act restricts employers in the manner in which they use age information.
For example, the Act only allows an employer to use a candidate’s age solely to determine whether to hire the employee and only where it is reasonably related to the employer’s core business and the job sought. In addition, the law prohibits the employer from providing sensitive age information to another employer unless required to do so by law. The employer also may offer the information to the federal or state government if the government entity needs it to provide government services.
Keeping in Step
The Equal Employment Opportunity Commission (EEOC) enforces federal laws against employment discrimination. The EEOC may impose penalties for non-compliance with federal anti-discrimination laws that range from $50,000 for small firms to $300,000 for large firms.
The Utah Labor Commission of the Utah Anti-discrimination and Labor Division is responsible for enforcing the Utah anti-discrimination laws. Mediation may become part of the case at the request of either party. The Commission may carry out employer inspections, investigate claims, and impose penalties for non-compliance. Sanctions under the Act may range from a written warning for a first offense to a $500 fine per employee for a second offense and a $1,500 fine for a third or fourth offense.
Keeping up with these federal and state agencies' guidances may pressure an in-house HR staff beyond its capabilities. The size of the staff may be too small to track all the laws and regulations pertaining to anti-discrimination in employment laws. The HR staff’s personnel may lack specialized training, and the employer’s budget may constrain modifications to HR staff. In such instances, to ensure compliance with age discrimination rules, we recommend outsourcing HR compliance to a Professional Employer Organization (PEO) in Utah.