ComplianceLegalAugust 19, 2020

Case studies of age discrimination in job ads

Case studies illustrating how job advertisements violate age discrimination laws can be helpful in avoiding legal liability when creating a job ad.

The following case studies demonstrate how the federal Equal Employment Opportunity Commission (EEOC) determines if a job ad is discriminatory against individuals who are at least 40.

Case study 1

Steve, a 67-year-old man, saw an ad in the newspaper for a cashier at Groceries and More. Their advertisement specified that:

"Applicant must be young and energetic and possess excellent customer relations skills. Applicants who are selected would be required to stand for long periods of time and to lift 25-35 pounds."

Steve contacted the EEOC to institute a charge against Groceries and More.

In this case, the EEOC would find a violation. By use of the word "young," the ad specifically indicates a preference, limitation, specification, or discrimination based on age. Such an ad would almost certainly deter many qualified older persons from applying.

Note that if the same ad appeared with only the word "young" deleted, it would probably be acceptable. Persons of all ages can be energetic and possess excellent customer relations skills. Further, the requirements to stand for long periods and to lift 25-35 pounds are not age-related criteria and, in any event, appear to be legitimate requirements for the job in question.

Case Study 2

Curtis, a 57-year-old graphic artist, claims that Sell-It Inc., an advertising firm, has discriminated against him based on age by publishing an advertisement that he feels clearly deters older persons from applying. Sell-It's ad stated:

"Young-thinking, 'new wave' progressive advertising firm has openings for entry-level position for graphic artist with no more than four years' experience. We specialize in music videos and broadcast productions for a youthful audience. Our main focus is in the area of animation. Our clients include famous pop and rap stars. If you have fresh, innovative ideas and can relate to our audience, send your resume."

While the ad does not contain explicit age limitations, read in its entirety, it does appear that persons in the protected age group would be discouraged from applying for the position. Sell-It contends that it does not discriminate against older persons and would hire a 70-year-old applicant if he or she is qualified and willing to work for an entry-level salary.

However, on further investigation it was found that Sell-It has no employees over 25 years of age. It was also revealed that Sell-It recently turned down two fully qualified graphic artists, ages 54 and 61, who were willing to work at an entry-level salary, even though both possessed more than four years of experience.

In this context, the EEOC would probably take the position that the ad is designed to deter older persons from applying. The EEOC would seek to have Sell-It change the ad to read:

"...young-thinking persons of any age with at least four years' experience and willing to work at an entry-level salary."

Case study 3

Matty, a 45-year-old woman who is actively seeking part-time employment, contends that she was deterred from applying for a position because of the employer's ad. Clean Clothes, a local laundromat, advertised in the newspaper as follows:

"Opening for a person seeking to supplement pension. Part-time position available for Laundromat Attendant from 8:00 a.m.-1:00 p.m., Saturday-Wednesday. Responsibilities include dispensing products sold on premises, maintaining washer, dryer, and vending machines. Retired persons preferred."

This ad limits the applicant pool by indicating a preference based on age. Persons rarely receive pensions or attain retirement status before 55 and frequently not until age 65. Thus, the ad deters younger persons within the protected age group (i.e., persons over 40 but less than 65) from applying. Therefore, it is a violation.

Case study 4

In response to a labor shortage that exists throughout the southeast region of the country, The Do-It-Yourself Shop, a large home-improvement chain, publishes the following advertisement:

"Wanted: Individuals of all ages. Day and evening hours available. Full-time and part-time positions. All inquiries welcomed. Excellent secondary source of income for retirees."

While the ad mentions "retirees," it is not an illegal age-based discriminatory advertising practice in this instance. Individuals of all ages are welcomed for the employment opportunity. The reference to retirees in the ad does not indicate a preference for this subgrouping of the protected age group. Rather, it notifies them of an opportunity and invites them to participate. The language in this ad differs from the language used in Case Study 3, which suggests that only retired, pension-eligible persons are considered for employment.

Case study 5

Cindy, a 47-year-old fashion and print model, contends that she has been discriminated against based on age. Beauties, a modeling agency, advertised in the fashion section of the newspaper as follows:

"Experienced models between 21-28 for upcoming fall collection of junior fashions. Applicants must bring a portfolio and references to our Beverly Hills office. Only those persons in the specified age category need apply."

Cindy auditioned and was rejected when the company found out her age. During the investigation, Beauties raised the bona fide occupational qualification defense and stated that the junior collection requires applicants who have a youthful appearance. Beauties further alleges that, traditionally, the junior fashions are targeted to younger women, generally between 18-25.

However, while Cindy is 47, she appears to be 27. In fact, Beauties was in the process of completing the paperwork necessary to hire Cindy when it noticed the date of birth on her driver's license. Beauties can't prove that persons 40 or older have a disqualifying trait that can be determined unless you check the age of the applicant. Therefore, Beauties hasn't proven that age is a bona fide occupational qualification, and its discriminatory ad must be changed.

If an advertisement clearly discriminates on the basis of age, the EEOC acknowledges that the employer can claim that age is a bona fide occupational qualification. In order to establish that age is a bona fide occupational qualification for a particular job, however, the employer must show that all or substantially all individuals excluded from the job are in fact disqualified. If a protected individual can, if fact, perform the job, this would defeat the claim that age is a bona fide occupational qualification.

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