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Age is just a number, right? Nothing to fret over, right?

Wrong! In the business world, age discrimination can get you in big trouble. Just ask Texas Roadhouse.

Back in 2011, the EEOC came down on Texas Roadhouse claiming since 2007, the Louisville chain had discriminated against job applicants ages 40 and over denying employment based solely on their age.

Recently, Texas Roadhouse filed a lawsuit against the EEOC stating they failed to release documents pertaining to the investigation after multiple requests. (Read more about that here)

Additionally, Texas Roadhouse believes the EEOC violated the Freedom of Information Act (FOIA). It has been suggested by Stephen Pence, the attorney representing Texas Roadhouse, that the initial investigation by the EEOC was unprovoked because there was not probable cause or any complaints registered.

Talk about an HR headache!

As HR professionals, we are here to help you avoid those nasty HR headaches especially those that come from an age discrimination claim. Integrity HR knows that the last thing you want on your daily agenda is to deal with the Equal Employment Opportunity Commission (EEOC). No thank you!

So today, we’re going to give you 6 tips to help you protect your company from an age discrimination claim.

First, a little background information to get everyone on the same page.

In 1967, the Age Discrimination in Employment Act (ADEA) was passed to protect people who are 40 or older from discrimination because of age. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

There are a slew of other laws that make it illegal to discriminate against someone on the basis of race, gender, religion, national origin, obesity, pregnancy, disability and more. (Check out a list of laws enforced by the EEOC here)

Since these acts were passed and enacted, if a disgruntled employee feels like he or she was dealt injustice, they can file a claim with the EEOC. Once that happens, typically an investigation is launched, thus creating an HR headache and interference into your daily business activities.

As a company and employer, you must be careful with what you could portray to current employees and prospective employees. This means you must watch your language in your job advertisement, in the interview itself and even once the person is hired.

Let’s get to the tips.

6 Tips To Help You Protect Your Company from an Age Discrimination Claim

Tip #1: Check The Wording On Those Job Advertisements & Applications

So you want to hire a recent graduate? That’s great! But you can’t say that. Here are some things you can put in your job advertisement if you so desperately want a “young” person.

  • Set a salary range balanced with the duties of the position.
  • Use the phrase “entry-level position” instead of “seeking a recent college grad” to signal that this is not a high-paying job.
  • Ask people to “refer friends and colleagues” without specifying an age range.

But let’s remember: Just like race, gender and religion, age should not factor into the hiring process. Instead, you should focus on ability, merit, skills, qualifications, education and experience that are tied to the requirements of the job.

And pretty please – do not have a line asking for the candidate’s age on the application. Delete that right now!

Tip #2: Be Careful What You Say In The Pre-Screen Interview or in the Rejection Call

Do not make offensive remarks about someone’s age that could lead to discrimination or harassment. Just check yourself before saying the first thing that comes to your mind.

Here are some good ones to avoid:

“You seem a little old to be applying for this job. Do you think you would fit in with the other employees?”

“We are looking for (young) individuals who can grow with the company.”

Tip #3: Tread Lightly When Age Is Mentioned In An Interview

We live in America and we are fortunate that we can ask a lot of the things that we want to. But you must be aware of the questions that are a lot riskier than others and the ones that are just flat out illegal.

If you want to avoid legal problems and costly litigation, get a list of appropriate questions and make sure to keep them focused to the job description. This will help you figure out if the candidate will be good fit for the job.

Make sure you don’t ask anything about age, race, religion, sex, national origin, and a couple other things that could get you in trouble. If the candidate mentions their age, simply move on. Do not write it down in your notes and if you do – write that the candidate stated their age. (Warning: Your interview notes will be evidence in the EEOC investigation.)

Tip #4: Get Your Polices In Line

From time to time, we are always surprised when we talk to employers and they say they don’t need an employee handbook because it will restrict them and cause problems.

Here’s the thing: you have rules in your workplace whether you write them down or not. The standards you set and share with your employees are policies in action.

Now we will give you this disclaimer right now: we are not attorneys.

We can tell you that not having an employee handbook does set policy. We have seen more problems for employers who do not have employee handbooks than those who have one.

The trick is keeping your employee handbook updated. An employee handbook that is not updated is going to cost you money and cost you problems.

If you haven’t taken a look at your employee handbook in the past year, then you need to do it now. Make sure you have anti-discrimination and harassment policies that specifically address age discrimination.

Also, take this time to analyze workplace policies with respect to hiring, compensation and benefits, to determine if there is any adverse impact on employees because of their age.

Tip #5: Make Your Anti-Age Discrimination Policies Known

This is a big one because … let’s all be honest – when was the last time your employees read the handbook? Heck! When was the last time you read it?

As the owner, manager or HR Professional, you need to inform your employees that discrimination of any kind will not be tolerated, including discrimination on the basis of age. This message should be included in training sessions, company wide meetings and maybe even posted on the bulletin board!

Increased employee awareness of age discrimination will decrease the probability that employees will engage in such behavior.

Tip #6: Document. Document. Document.

Just because you follow all the tips above, doesn’t mean your workplace won’t be investigated. What’s the best defense against an EEOC claim – documentation!

You need to actually use those employee files to keep up to date records on all employees. Important information to include would be documentation from the interview process, any performance issues, and absences/attendance issues. So dust those babies off and start putting paperwork in there!

Let’s wrap it up.

Keep in mind; it is the employer’s responsibility to make sure everyone within the organization abides by these policies and procedures.

There’s one thing that we didn’t list as a tip because it should go without saying.  However, we going to say it anyway – just in case.

The main thing to do to avoid an age discrimination claim is this:

Don’t discriminate based on age.

Don’t do it on purpose, and don’t let it happen by being negligent.  All too often we might let a great candidate pass us by, or a great manager not get promoted to a new and innovative position, because our predispositions and stereotypes make us believe that they are not up for the job.  We may tell ourselves we are making wise decisions; we may have to question our judgment.

Additionally, as we said before, even if you follow these steps, it does not mean your company will not have a claim of age discrimination filed.

However, if these tips are practiced and incorporated into your company culture, you can significantly decrease the risk of checking your mail one afternoon with a letter from the Equal Employment Opportunity Commission because you allegedly violated the Age Discrimination in Employment Act (ADEA).

So let’s all follow the HR rules so we can sleep better at night!

about the author: Amy Letke

Amy Newbanks Letke, SPHR, GPHR, is the Founder of Integrity HR, Inc. Amy provides workplace solutions to improve performance, reduce liability and increase profits. She is passionate about helping other entrepreneurs and business owners achieve success.

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