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Can a United States Employer Ask a Job Applicant for Their Date of Birth?

  • By: lipplaw
    Published: February 24, 2021
Rights of an Intellectual Property Owner

When you apply to jobs, sometimes you’ve been asked for your date of birth. Perhaps this question doesn’t sit well with you, and you are wondering – is it legal for a potential employer to ask for your date of birth?

In the US, the answer is yes. While the employer can ask a job applicant for their date of birth (DOB) and proof of age, they must only use this information for legal purposes and cannot use a DOB to discriminate against applicants based on age. For instance, an employer can ask for a DOB to perform a background check.

Let’s dive deeper into when employers are allowed to ask for your date of birth through job application forms, what you should do in case of age discrimination, and how to respond to age questions and other questions the employer shouldn’t ask.

When Can an Employer Ask for Your Date of Birth?

An employer can ask a job applicant for their date of birth or age when there’s a minimum age requirement for the advertised job. This information helps determine if they are a fit for the job. But even in these situations, employers may opt to ask if you are over 18 instead of your date of birth.

Also, your date of birth makes it easier for employers to review your financial, criminal, and commercial records.

What is the Age Discrimination in Employment Act (ADEA)?

The Age Discrimination in Employment Act (ADEA) is a federal law that protects certain job applicants and persons aged 40 years and above from workplace discrimination based on age. This act doesn’t protect workers under 40 years, although some states have laws or regulations protecting younger workers from age discrimination. The ADEA applies to employers with 20 or more employees.

Despite this federal law, the Equal Employment Opportunity Commission (EOCC) highlights that about 60% of older workers surveyed claim to have witnessed or experienced age discrimination at work. Ninety percent of the respondents claimed it was a common occurrence.

Forms of Age Discrimination

Age discrimination in the workplace takes different forms, including:

Not Calling it Firing

Most employers won’t tell you to your face they’re firing you because of your age. Instead, they disguise it as job elimination. They eliminate your position only to hire a younger worker to handle your previous responsibilities under a different job title.

Employers can also hide behind layoffs. Under the Age Discrimination in Employment Act (ADEA), covered employers should provide a list of retained and laid off employees plus their ages to disprove age discrimination. Unfortunately, some employers circumvent this by providing an incomplete layoff list or firing several young workers to improve optics.

Some employers also provide older workers with the option of early retirement with the allure of a good retirement benefit. While this may come off as gracious and tempting, be wary of it, especially if the alternative is getting fired.

Promotion Based Discrimination

Promotion based discrimination is when an experienced and qualified older worker is passed over for promotion, and the position is given to a younger, less experienced worker for lower pay. Often these situations provide clear cases of age discrimination.

Age Discrimination in a Job Ad

Employers can use coded language in their job ads to exclude older workers. In the US, it’s illegal for companies to outrightly state they need employees of a specific age in their job ads. So instead of specifying an age range, they use indirect language like saying they need digital natives, a term that’s understood to refer to employees born after 1990.

Other examples of job ad discrimination include calling for applicants with a specific year of experience. One inappropriate candidate screening practice is targeting social media job ads to workers within a specific age range. This method is effective in pre-screening the audience and ensuring the ads aren’t shown to older workers.

It’s challenging to prove age discrimination in courts based on the wording of a job ad. However, if you believe you’ve experienced age discrimination, talk to our experienced employment lawyers. Or conversely, if you are an employer that has been accused of age discrimination, our employment law team can provide fast and cost-effective legal representation against an employment law allegation.

How Do You File an Age Discrimination Claim?

If you suspect you are a victim of age discrimination, you should file a charge with the Equal Employment Opportunity Commission (EEOC). Employees have 180 calendar days to file the charge. For employees in states with age discrimination laws and authorities or agencies that enforce this law, the time is 300 days.

On the other hand, job applicants have 45 days to file their charges.

You can file this charge in person or online. When you do, make sure you have evidence of age discrimination, including individuals who might have witnessed the matter. Employment attorneys at Lipp Law firm provide legal advice, guide you through the process and determine what type of evidence can help your case, or if you are an employer, your defense against a charge.

How to Prove Discrimination Based on Age?

To prove you were discriminated against, you should show that you are in a protected age class, and your job performance was up to standard. You will want to allege that an adverse job action was taken against you, and younger employees were treated favorably.

When suing under the ADEA, an employee must prove that “but for” their older age, the adverse employment action taken against them wouldn’t have occurred. To prove “but for” age discrimination, a test is run where one thing is changed at a time and the outcome of the changes noted.

If the outcome is different, then the employee has likely fulfilled their burden of proof under the “but for” causation standard. An employee doesn’t have to prove that age was the only or sole reason for the adverse employment decision.

What Questions are Employers not Allowed to Ask?

Aside from age, other mandatory job application questions that pry into an applicant’s right to privacy and can cause legal liability include:

  • Gender
  • Sexual orientation
  • Race
  • Religion
  • Disability
  • Marital status, spouse’s identity, and occupation
  • Military service or type of military discharge
  • National origin or birthplace (however, employers are allowed to ask about your ability to work in the United States)
  • Genetic information
  • Criminal record
  • Salary history
  • Note that some job applications will allow an applicant to voluntarily provide certain demographic characteristics, but this should be optional

Should I Answer Illegal Interview Questions?

When an interviewer asks an illegal question, point this out in a professional and neutral tone. Doing this puts the interviewer or employer on alert that you know the line of questioning is off limits. If they insist on asking illegal questions, you reserve the right to decline to answer and even walk away from the interview.

If you choose to answer, you should be vague and focus on why you are a great fit for the advertised position.

What is the Effect of Age Discrimination?

Age discrimination negatively impacts the mental health of older workers. When they have difficulty landing, keeping, or progressing in jobs due to age, their financial independence may be impeded, which can create mental health issues such as depression and anxiety.

Aside from this, age discrimination negatively impacts the economy. According to a report by AARP, bias against older workers resulted in an $850 billion loss in GDP, $545 billion in lost salaries and wages, and $8.6 million jobs lost in 2018. AARP forecasted the annual losses could amount to $3.9 trillion by 2050.

Get Professional Help

Employment lawsuits can take many years and thousands of legal fees to resolve. Employers can receive insurance coverage to protect against employee-side claims called Employment Practices Liability Insurance (EPLI). Start-ups and fast-growing organizations should consider obtaining EPLI coverage to protect against inevitable employment claims.

If you are an organization or employee looking for age discrimination lawyer, contact Lipp Law today.

Kathryn Megan Lipp

Katie dedicates her practice to employment separation guidance.
Based on her successful employment litigation practice...Read More