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Susan M. Heathfield

Can Employers Ask Your Age?

By November 23, 2013

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Age-related questions are common in my email since the current job market is especially tough for older workers. Many employers appreciate the wisdom, grace, and experience that an older employee can bring to the workplace. But, others just see the shine of the newly minted employee who has well-developed technology skills, enthusiasm, energy, and a desire to quickly grow and contribute.

Reader Question: Recently I interviewed for a job - and the company asked me and the other three final candidates to complete a background authorization form before any of the four of us was offered the position. The requested information included Date of Birth (DOB), SSN and Driver's License number.

I did not want to have such personal identifying information in the data base of a large background check firm unless I was being offered the job, which I was not at that point. Also, because I am 65, I feared age discrimination. Nonetheless I complied, concluding that not doing so would hurt my chances - either because they might think I was hiding something or was being uncooperative.

They did post a disclaimer on the authorization form: "Date of Birth is requested only for the purposes of identification in obtaining accurate retrieval of records and it will not be used for discriminatory purposes."

In other words, the request for the background authorization was step two in the process:

  • Step One: first in-person interview: one on one
  • Step Two: request for authorization to perform a background check with DOB for the four final candidates
  • Step Three: second in-person panel interview
  • Step Four: presumably the final selection

Was it legal and appropriate for the company to ask for my DOB in a background check authorization before a job offer? I would like to know to handle such a request, should it arise again in the future.

My Response: There is no law against asking for age on a job application or background checking forms. That may vary from country to country or state to state.

That said, I encourage employers not to ask for information like age and social security number on an application because of potential discrimination issues.

I also don't want the responsibility of safe keeping that information for any but my final candidate or two. But, it is commonly recommended as a step to speed up hiring.

Employers do need it to do background checks, and you should consider it encouraging that your application has reached the point of a background check. Employers only background check their finalists for a position, and only with your permission.

Each employer differs about when they do background checks but as long as they keep their process the same for each candidate, they are probably okay. The employer already knows how old you are from application materials and the fact that you have already been interviewed. Yes, they may discriminate, but you would have a very hard time proving that age was a factor in their decision to hire or not.

Human Resources offices with which I am familiar go to some length not to share potentially discriminatory information with their hiring teams. I have, for example, never shared a candidate's application with the hiring manager because of the information there. Nor would I ever share the background checking information that a candidate gave me to pursue the checks.

The hiring team receives a copy of the resume and cover letter only. Job candidates are advised to put only the last ten years of relevant job history on their resumes. They can also leave off the dates of their degrees until the employer needs to verify the degree. It is in the employer's best interests that employees are protected from potential claims of discrimination.

I'm sorry that I am not more hopeful about this. Employers may ask for whatever they think they need to make a legitimate hiring decision. If they are consistent and do not use the information to discriminate, they are in good standing.

I am not an attorney so this is just my personal opinion; you will want to check with an employment law attorney if you are troubled by the request. As you are job searching, you may find this helpful: Maintain Professional Relevance At Any Age - 9 Tips Will Help You Combat Age Discrimination No Matter Your Age

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More Related to Age Discrimination

Comments
August 2, 2012 at 11:05 am
(1) W says:

Uh…hello? Not illegal to ask a person’s age on a job application (or otherwise)? Of course it’s illegal!

This info comes right from the about.com website:
http://jobsearch.about.com/od/interviewsnetworking/a/illegalinterv.htm

Here’s another:
http://www.hrworld.com/features/30-interview-questions-111507/

September 7, 2012 at 5:27 pm
(2) ajm says:

To W:

According to the ADEA, it is not specifically illegal to ask for age during the hiring process/application for employment. It is illegal to make a hiring decision based on age. What the company does with the information is the important part. It is perfectly legal to ask for age on an application, just not that wise.

- Human Resources Professional

January 30, 2013 at 1:37 pm
(3) BBJ says:

It is NOT ILLEGAL to ask your age on a job application or during an interview! There is not Federal Law or State law the prohibits this type of question! I should know I have seen it numerous times on job applications that I had to fill out online and I could not move forward in the application if I did not fill in the correct information. I even tried to just put in all zeros in that section of the job application and I could not bypass it all! Plus I had to provide my entire SS# too!

I too thought it was illegal to ask the applicant their age on the application or during the interview, but I have searched the internet and there is all kinds of confusing information out there about whether or not a potential employer can ask these types of questions – and I have some information that states that it is illegal and some that states that it is not! So which is it?

April 24, 2013 at 5:00 pm
(4) steve says:

Most employers have stopped asking for DOB. Instead they ask what year you graduated high school. They don’t care about what years you were in college. You might have gone to college in your 40s.

June 5, 2013 at 4:43 pm
(5) Joyce says:

It is illegal and yet some arrogant attorneys have found yet another way to circumvent the law by advising employers “to ask for year of high school graduation” and you cannot get past it. I have thought about putting 1925 but I’m sure they would say the application was falsified. Can’t anyone in this country abide by laws anymore!

June 8, 2013 at 11:48 pm
(6) Susan Heathfield says:

Hi Joyce,

I advise employers to never ask any candidate a question that might cause them to reveal protected information. I am sorry that this is your experience.

September 29, 2013 at 8:39 pm
(7) Jeanne says:

I was downsized out of my job in August, 2010 when I was 58 years old. I am into my fourth year of trying to secure a decent job, one that pays a living wage. 99 out of a hundred companies require prospective employees to complete an online application. EVERY application I have completed has asked for my age. It is common practice. Big deal that it is illegal. That isn’t stopping employers from blatantly asking for the applicant’s date of birth. Age discrimination against older workers is out of control, and no one seems to care.

October 2, 2013 at 1:49 pm
(8) Susan Heathfield says:

Hi,

It is not illegal to ask for your age. It becomes illegal if the employer takes it into consideration as part of the hiring decision. That is discrimination.

October 17, 2013 at 8:48 pm
(9) c says:

I beg to differ…please read below:

4. “How old are you?”
The Age Discrimination in Employment Act (ADEA) protects people over the age of 40, who work in companies with more than 20 employees, from employment discrimination. Employers may specify an age limit for a position only in rare cases where it can be proven that age is a BFOQ. (For example, the choice of one actor over another, using age as a basis for authenticity.)

In all other cases, an interviewer may not ask when you were born, when you graduated from high school (since most students graduate at age 17 or 18), or any other questions from which your age may easily be determined. Individuals under age 40 aren’t covered by the ADEA, but many states offer them some protection.
Fair questions: “Are you the minimum age required to perform this job” (Federal allows those aged 14 and 15 to work in a limited capacity; 16 and 17-years-old can perform non-hazardous jobs.) Some job applications include a space for your date of birth, along with a disclaimer.

November 23, 2013 at 8:49 pm
(10) Steve Smith says:

First, the EEOC has made it clear that asking for date of birth is not per se a violation. However, it is discouraged since it can lead to applicants being deterred from applying. As far as the background firm, a background check simply cannot be conducted without a date of birth, so refusing to sign/provide means you are essentially not meeting the requirements for applying. Typically the employer does not ask for DOB but only the screening firm does because it is needed for the check.

.

November 23, 2013 at 9:45 pm
(11) Mary Beth says:

I had an interview for a job October 25th for a Temporary Job through a Temporary Employment Agency. The interview went well and I thought that I got the job since I was asked for my Drivers License and Date of Birth to run a Background Check along with giving a Voided Check and Tax Forms to be filled out, Is all this information illegal since it is sitting in their files. I still have not heard back from the employment agency even though I contacted them.

November 24, 2013 at 8:52 am
(12) Susan Heathfield says:

Hi Mary Beth,

It is legal to ask for that information. As an employer, I don’t want all of that just sitting in my files although they are secure, but many employers do ask. I would contact them again and ask what you can do to further demonstrate your qualifications. I am continually surprised by the lack of follow through and poor communication demonstrated by employers to job candidates.

November 23, 2013 at 9:57 pm
(13) Margaret says:

I received a call from an Employment Agency about a temp job opening that I would be qualified for. I was asked during the interview application for my Drivers License and Age for the Background Check along with Tax Forms and a Voided Check. I called the agency and wanted the status on my application but have not heard back from them. They have all my personal info in their files.

December 19, 2013 at 8:27 pm
(14) Molly B says:

We come here for the answer to this question, and your answer is you don’t know? Your answer is that you encourage employers NOT to ask? Pshhhhhhhhht. Man, I need a job, and I can answer questions better than this. Do a little research! Hire me- ask.com!!!
In my experience these last 6 months, even ONLINE applications have asked for DOB, SS#, and permission to run credit and background checks – all even BEFORE attaching the resume, or having an interview, and of course before an actual job offer! I went to Whole Food/s website to apply today, and they ask WHAT YEAR did you graduate from high school!??! You MUST pick a year from a drop down box, that includes 2014(!) then list every year backward, ending at “1945 or earlier” (!) HOW in the world is this LEGAL??? At in person interviews, when they hand me an application, before they give me the clipboard, they want my DRIVERS LICENSE. I am 55 years old. Who are we kidding here?! In the 1990′s I worked HR, and at NO TIME were we to ask anything about dates: dates of birth, dates of schooling, etc, as they were clear indicators of age, and as such were ILLEGAL TO ASK! And NEVER would we see a person’s driver’s license until the first day they actually started their job, as one of their 2 forms for ID (as required by law) and for their tax withholding form.
How we are discriminated by our age today in this country, is deceptive, disgusting, and morally wrong. We mature people have to eat, too.

December 20, 2013 at 2:20 pm
(15) Susan Heathfield says:

I believe I answered the question twice. The first time I said that there is no law that bars an employer from asking your age. Later, in the same post, I said: “Employers may ask for whatever they think they need to make a legitimate hiring decision. If they are consistent and do not use the information to discriminate, they are in good standing.”

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