Full question:
I have a B.S. in mathematics and I am a recent graduate from nursing school with a 3.87 grade point average which was the second highest average in my class of 135. I was also the oldest in my class. I am 61 years old. Since I recently felt I was the victim of age discrimination because a fellow student volunteered to the prospective employer that 'I was her age' after which I did not get an interview and the HR recruiter used the terms 'high energy and fast paced' to describe the floor on which I had been applying to work. I am very sensitive about divulging my age. I have an interview tomorrow with a hospital within a larger health alliance of hospitals. The HR recruiter sent me an email asking me to fill out additional forms 'to save me from having to come back and sign them after/if I accept a job. The form asks for age, gender, and ethnicity. Do they have the right to ask this prior to my interview or employment? After providing the information, how would I ever be able to prove that I was not offered a job because of my age?
- Category: Employment
- Subcategory: Discrimination
- Date:
- State: Kentucky
Answer:
The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. The ADEA does not specifically prohibit an employer from asking an applicant's age or date of birth.
The elements of proof will vary depending on the exact factual circumstances. Generally, there are two types of proof of age discrimination. The first is direct evidence of the employer’s discriminatory intent. This type of evidence is very rare, but usually takes the form of oral statements that the prospective employee is "too old" or "there is too much gray hair in this company." Once the prospective employee has shown direct evidence of age discrimination, the burden of proof shifts to the employer to prove that it would have taken the adverse action even without the discriminatory intent. In most cases, however, the prospective employee does not have direct evidence and must rely on indirect, or circumstantial, evidence. This typically involves proof that a pattern of discrimination exists through the use of statistical analysis, or providing circumstantial evidence that discrimination occurred.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
