Proving Age Bias is Hard but Not Impossible

Employee Rights Attorney

Mission Viejo, California

Q: “How do you prove age discrimination? If you’re applying for jobs and you sense you’re being screened out for being overqualified, is that legal? After a career in the private sector, I want to work in the public sector, but I’m afraid all people see is my age on the application. Is there a recourse?”

A: “Proving age discrimination is often very difficult, especially when hiring is involved. Discrimination against present employees is easier to prove because you often have a history of a ‘double standard,’ as well as willing witnesses to support your claim.

“On way to document where you stand, in a hiring situation, is to compare yourself with the other applicants for the position by striking up a conversation with them in the waiting room before or after your interview. Also, ask anyone you know who actually works for the employer to give you feedback about the identity and qualifications of the person who ultimately gets the job.

“If you think that the prospective employer is not considering you because of your age, you could file a complaint with the California Department of Fair Employment and Housing or the Federal Equal Employment Opportunity Commission. They have the ability to require the employer to provide all relevant information regarding the job. As an alternative, you can get further information by filing a lawsuit.

“You can try to prevent discrimination by not emphasizing age factors. Instead of putting down the dates of previous employment, you might consider being more general. If the application asks questions about your age or requires your photograph, from which age can be determined, the employer may be in violation of the law. On the other hand, some employers, especially in government, might be required to ask you questions regarding your age, or for that matter race, to comply with affirmative action programs.

“Keep in mind that in regard to hiring or promotions, it may not make any difference whether the person selected for the job is, in factor, better qualified than you. The law protects your chance to try out for a position. If you have been denied that opportunity for discriminatory reasons, then you may recover damages.”