A recent study offers powerful statistical proof that many employers discriminate against female job applicants who are over 40. Women in this age group, the proof shows, often find it vastly harder to get hired than men above 40. Indeed, the authors of the study concluded that “…if one emphasizes the evidence from [certain statistical analyses], there is evidence of age discrimination only for women.” This will come as no surprise to women, but the study by the National Bureau of Economic Research, completed 90 days ago and updated in January 2016, nonetheless shines a disgraceful spotlight on the employment practices of many US employers.
It’s important to note that the study isn’t about the difficulties women have in keeping jobs after turning 40. Its focus is on women who are unemployed and trying to get hired. It’s a horrific problem because financial instability at this stage of life can cause permanent harm. This includes an inability to maintain housing, to keep children in school or college, or to ever retire. The hard statistics show the damage from long-term unemployment for women over 40 remains a grave, national problem.
Spotting Discrimination in Hiring
Here are some key signs of possible discrimination against you in the hiring process:
- Look for clues in the advertisements, position descriptions and interviews. Many of my clients report ads that seek “recent” college graduates, “energetic” applicants and “fresh faces.” All these terms have been recognized by courts as possible code for “younger, not older.”
- Look for interview questions or comments that focus on your age, your appearance and stereotypes about older employees (e.g., “Do you think you’ll be able to keep up?” or “Do you think you’ll have any problems using a computer?” or “You’re overqualified.”). Also look for anything unusual about the way the hiring process is conducted. Did something out of whack?
- Finally, look at the workforce in place, and look at who actually gets the job. The ages of the current staff and of the winning candidate will tell you a great deal. Look also for explanations that are highly-subjective and not measurable, such as “Well, Daniel seemed more excited during the interviews.” Courts view with great suspicion any explanation that is incapable of easy evaluation. (It usually doesn’t matter how old the interviewers are. Older interviewers, and female interviewers as well, for that matter, discriminate as well as any other. It’s who got picked, not who did the picking. Some employers purposely mix up the hiring panel precisely to mask discrimination in the ultimate decision.)
- Use your own credentials as a gauge. An applicant who is 20 cannot have more experience than an applicant who is 50. So if the employer says experience matters, and you’ve got it coming and going and still didn’t get hired, that’s one indication discrimination may be a factor.
How Hard Is It to Prove An Age or Gender Discrimination Case?
The short answer is, not hard. You do not need a confession of illegal discrimination by the employer – who would admit that anyway? – and you don’t need an army of witnesses to back you up. In most cases I win at trial, my client is the only favorable witness. Juries are specifically told that they’re not to base their decision on who has more witnesses – one is enough, if the jury believes that one. A winning discrimination case is assembled like a mosaic, with bits and pieces – your credentials, the winners’ credentials, the advertisements, position descriptions and information about the interviews. In one case I handled, my client, a female over 40 was told she won the position. The next day, after the interview panel revealed her selection to a top company official, she was told there was “good news”- the “next round of interviews” would begin soon. But there was never going to be a “second round.” Even the interview panel members were stunned at this explanation. Eventually, my client lost the position to someone else who wasn’t nearly as qualified. This kind of oddity is an example of the mosaic of inconsistencies I use to win age and gender cases.
And while the only legal standard we hear on TV is “beyond a reasonable doubt” – which is the standard used by juries in deciding the guilt of a criminal suspect, and which requires the equivalent of 99% certainty – the standard to win in discrimination cases is much lower. The legal standard here requires a jury to believe only that discrimination was “probably” a factor. Think of this as the 51% standard, or “more likely than not.” (That is exactly how I explain it to juries in trial, by the way.) The jury can disbelieve much of the evidence, but if at the end of the trial it still thinks the failure to hire you was “probably” the result of discrimination, you win.
Finally, it isn’t necessary to prove discrimination was the only reason a female applicant over the age of 40 wasn’t hired – only that it was one of the reasons. There could be a dozen reasons why the applicant wasn’t hired, but if one of those dozen was age or gender (or both), the jury must rule in favor of the employee. A victory at trial opens the door to claims for lost wages, emotional distress damages, reinstatement, punitive damages, and attorneys’ fees and costs.
Stand Up. Speak Out. Fight Back.
Speak to an expert in employee rights if you applied for a job, didn’t get hired, and feel like the outcome might be tainted by age or gender discrimination. Don’t dismiss this possibility. Discrimination in hiring against women over 40 is very real, and it happens often. Let an expert tell you if there is a claim or not. These cases are very technical and require heavy experience to gauge. I sometimes meet with potential clients who’ve spoken to other lawyers with limited experience in federal discrimination law, and they missed important signs of illegal behavior and, worse, missed valuable claims and deadlines. So look for an attorney whose practice is limited to employment law, and who only represents employees. Lawyers who practice in more than one field may not have the depth of expertise you need. And while there are many fine individuals who represent employers, it’s important to find an attorney whose career is devoted to employee rights. An attorney who spends some or much of their time defending employers may not be able to relate to you the same way, and may even eventually have to withdraw because of conflicts of interest with her other current or prospective clients.