I will be 63 in April and find myself in the unenviable position of looking for work. I thought employers were not supposed to ask an applicant any questions related to their age, other than if they’re over 18. Yet they want to see your driver’s license, ostensibly to make sure you’re legal to work in the U.S., or they make you fill out a background check form, which requires you to list of date of birth. I think this is a sneaky way for them to learn your age and reject you on that basis.
Can I refuse to show them any documentation listing my date of birth? Is it even legal for them to require it in the first place?
Dear Nancy replies:
You are correct in stating it is unlawful to discriminate against an individual in not hiring, firing, not providing bonuses and in not promoting an individual solely on the basis of the person’s age. This federal law, The Age Discrimination in Employment Act and its amendment, The Older Workers Benefit Protection Act, protects any person who is 40 years of age or older and applies to employers with 20 or more employees.
The law does not say an older worker cannot be fired or must be hired. Rather, it prohibits any type of discrimination based on age alone. If an older worker is not performing his or her job, or is not qualified for a position, then the employer is not obligated to keep the employee and is not obligated to hire
Asking one’s age when applying for a job solely to keep from hiring someone 40 years of age or older would be a violation of the law. However, asking to see a driver’s license and doing a background check, which it is assumed is done for any and all applicants due to other applicable federal and state laws, would not be a violation of the ADEA or the OWBPA. In today’s world, where identity theft, falsification of documents, lying about one’s age and other factors requires employers to verify the persons identity.
If you believe, however, that you are being discriminated against due to your age by potential employers, seeking a consultation with a nurse attorney or other attorney in your state who works in the area of employment discrimination and represents employees would help you obtain specific advice and decide how to proceed. Particularly important would be the attorney’s advice about refusing to provide the documents requested.
You also can review the applicable laws on the Equal Employment Opportunity Commission’s website at (www.eeoc.gov). Click on Employees and Applicants, then Age Discrimination in the drop down menu for more information.