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When age may be an issue

Posted by Pattie Hunt Sinacole  July 15, 2013 02:35 PM

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Q: I am 55 and have been job hunting for several months now. I apply for jobs, for which I have significant and related experience. Then, nothing. No response, nothing.

There was one job for which I interviewed. It was perfect for my background. The role required extensive experience in my field. During the interview they told me I was a strong candidate but then nothing. I called, emailed and followed up several times. I have a friend that works at this company and she said they were still interviewing for the role. My friend told me that they may be looking for someone younger but she could not confirm this information. The hiring manager is around 30 years old and could be my son. I never heard back from the company. I assume it was eventually filled.

This has happened repeatedly. I think I am being discriminated against by this company. I want to explore legal actions. What are your thoughts?

A: It sounds like it was a frustrating experience. In many cases employers’ hiring decisions are made for entirely appropriate reasons. Even when employers handle the hiring process incorrectly, their missteps do not necessarily violate the law. Sometimes, however, poor recruiting and employment practices can cross the line between unprofessional and unlawful conduct.

The federal Age Discrimination in Employment Act (ADEA) and the Massachusetts state Fair Employment Law both forbid age discrimination against people who are age 40 or older. These laws prohibit discrimination throughout employment, including during the recruiting and hiring processes. The circumstances of your application certainly raise concerning questions, however, there may be a number of legitimate reasons you were not selected for this job.

If you believe that there is evidence that you were the victim of employment discrimination, you may consider filing a charge of discrimination with either the U.S. Equal Employment Commission (the EEOC) or the Massachusetts Commission Against Discrimination (the MCAD). It is important to keep in mind that bringing a discrimination case often takes many months, or even years. Proving age discrimination is particularly challenging. According to employment attorney Daniel S. Field, a job applicant asserting a federal age discrimination claim must prove that age was the determinative factor for the employer's decision (as opposed to just one factor among several under a "mixed-motive" theory). This requires an applicant to produce evidence that age was the ‘but-for’ cause of the challenged employment action, according to Field who is a partner at Morgan, Brown & Joy, LLP, an employment and labor law firm.

To assess your options, the best place to start may be with an experienced employment lawyer who can discuss your options. NELA is an employee-side legal organization that may be able to help. http://www.massnela.org/


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Patricia Hunt Sinacole is president of First Beacon Group LLC, a human resources consulting firm in Hopkinton. She works with clients across many industries including technology, biotech and medical devices, financial services, and healthcare, and has over 20 years of human resources experience.

Elaine Varelas is managing partner at Keystone Partners, a career management firm in Boston and serves on the board of Career Partners International.

Cindy Atoji Keene is a freelance journalist with more than 25 years experience. E-mail her directly here.

Peter Post is the author of "The Etiquette Advantage in Business." Email questions about business etiquette to him directly here.

Stu Coleman, a partner and general manager at WinterWyman, manages the firm's Financial Contracting division, and provides strategic staffing services to Boston-area organizations needing Accounting and Finance workforce solutions and contract talent.

Tracy Cashman is Senior Vice President and Partner of the Information Technology search division at WinterWyman. She has 20 years of experience partnering with clients in the Boston area to conduct technology searches in a wide variety of industries and technology.

Paul Hellman is the founder of Express Potential, which specializes in executive communication skills. He consults and speaks internationally on how to capture attention & influence others. Email him directly here.

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