When Interviewers Press for Birth Dates and Grad Dates, Is It Discriminatory?

Five years ago, when she was 51, Linda applied for a communications job at a San Diego-based health care company. With experience in public relations and health care, as well as solid computer and digital skills, she was told by interviewers that she was a strong candidate for the position.

This is what interviewers also told her: “We decided to go with someone younger.”

“I was so floored at such an illegal response from a company boasting on its home page as winning awards for hiring women over 50,” recalls Linda, who asked that her real name not be used. “So I politely said, ‘Well, at least you’re candid.’ ”

Age discrimination in employment is rampant, according to the stories of women interviewed by SHRM Online, as well as those who shared discrimination stories in a recent LinkedIn discussion among professional women.

Asking for birth dates, for high school graduation dates, for college transcripts—all can be ways that employers try to uncover a job applicant’s age. And while such requests aren’t by themselves illegal, according to the U.S. Equal Employment Opportunity Commission (EEOC), they can raise questions about the motive for asking.

“It’s not illegal to ask one’s age, but the employer cannot make employment decisions based on one’s age,” said Christine Nazer, spokeswoman for the EEOC. “Generally speaking, an employer admitting that it made an employment decision based solely on one’s age could violate the law.” 

LinkedIn Commenters Share Stories

In the LinkedIn discussion, several women over 50 shared their stories of perceived age discrimination.
In a follow-up interview with SHRM Online, one of the commenters, Ellen—who asked that her last name not be used—said that when she was in her late 40s, she lost her job as a hospital department manager after a merger. She found that job hunting was noticeably harder than it had been when she was younger.

“I wrote it off as, ‘Oh, I’m looking for higher-level jobs, and so they’re harder to find,’ ” she said.

But then she encountered something that suggested her age might be a factor: Phone calls with hiring managers would go well, but when she filled out the requisite online applications, which invariably asked for a birth date or high school or college graduation date, she never heard back. 

“My phone just wasn’t ringing,” said Ellen, who now works part time selling wine at an upscale supermarket, making $10 an hour. “I’ve had 17-plus interviews. No offers. I'm struggling.”

Ellen described how a friend of hers who was in pharmaceutical sales for 30 years would put only her last 15 years of experience on her resume—a practice that older applicants often resort to, Ellen explained, to hide how long they’ve been in the workforce. During one face-to-face job interview, Ellen said, the interviewer repeatedly asked her friend whether the earliest job listed on her resume was her first job out of college.

“He kept pushing her, and finally she had to answer that no, it wasn’t her first job out of college,” Ellen said. “He was trying to figure out how old she was, because a lot of us don’t look our age. After that, she said, the interview just went downhill.” 

Even Legal Questions May Not Be Advisable

The Age Discrimination in Employment Act doesn’t prohibit an employer from asking about an applicant’s or employee’s age, or from asking other questions that may help the employer determine a person’s age, Nazer said. But in the event of an age-discrimination lawsuit, the motivations for such questions, she added, “will be closely scrutinized to make sure that the inquiry was made for a lawful purpose.”

“Such inquiries may deter older workers from applying for employment, or may otherwise indicate possible intent to discriminate based on age,” she said.

Shane Muñoz, an attorney with FordHarrison in Tampa, Fla., recommends employers avoid such questions entirely. He said that sometimes an employer might feel that a graduation date is relevant in an interview, if, for example, “a concept or technique relevant to the job is new … and the latest developments wouldn’t have been included in the curriculum for someone who graduated prior to a certain date.”

He advised: “Even in that case, the preferred approach would be to inquire about whether and where the applicant obtained the relevant education, training or expertise, rather than asking for date of graduation from high school or college. 

“As with any question about protected-class status, if the employer asks the question and takes an action adverse to the individual shortly thereafter, the temporal relationship between the question and the adverse action may cause the individual—and perhaps a jury—to assume a nexus between the two,” he said. 

Michelle W. Johnson, an attorney with Nelson Mullins Riley & Scarborough in Atlanta, goes further. She said such questions are “obviously improper.”

She said that if an applicant is asked a question about prior jobs not listed on a resume “it may be possible to deflect the question with a vague response such as, ‘I have had other jobs, but I feel that the positions on my resume from the last 15 years are the best examples of my skills and experience.’ ”

In instances when the interviewer presses for a more precise answer, she advises applicants against pushing back too aggressively—for instance, by objecting that the question has discriminatory undertones.

“Don’t call the interviewer on it, which will only embarrass him and extinguish any lingering interest in hiring you or recommending you to someone else who may be hiring,” Johnson said. “It may not be possible to avoid answering the question without looking like you have something to hide. In that case, I’d go ahead and answer, even though you shouldn’t have to. And, I’d think hard about further pursuing employment with a company that exhibits such evident age bias.”

‘Overqualified’

A 2012 AARP survey found that nearly two-thirds of 1,502 adults ages 45-74 (who were working full or part time, were self-employed, or were looking for work) reported experiencing or witnessing age discrimination in the workplace. Additionally, 92 percent said such discrimination was “very” or “somewhat” common, although 75 percent said their age has not caused their employers to treat them differently.

Sharon Belhamel, a 50-year-old HR professional with her own consulting firm, commented on the LinkedIn discussion. She described for SHRM Online being laid off as a mental health counselor when her company, which she prefers not to name, merged with another.

Belhamel, who lives in Georgia, has been told by hiring managers that she’s “overqualified.” One HR director told her the company couldn’t afford her salary—“even before knowing what I was earning,” Belhamel said.

Johnson said that if candidates do appear overqualified, it’s acceptable for an employer to ask them why they’re applying for the job, given their level of experience and qualifications.

“They may be new to town, or re-entering the workforce after a period of unemployment or have other valid reasons,” she said.  “On the other hand, they may have negative traits that have made them unemployable at the level of their experience, so that the entry-level job they are looking for is all that they can find.”

But it’s never advisable, she said, “to tell a candidate that they are too experienced or overqualified for a job that they have applied for. These phrases may easily be interpreted as age discrimination.”  

Dana Wilkie is an online editor/manager for SHRM.