2017 hiring plans may exclude those over 40

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Q: I am a new supervisor and we have been discussing hiring plans for 2017.  I work for a growing tech start up.  It is a fun environment but demanding.  My manager keeps describing our ideal new hire as “young, bright, high energy, etc.”  She keeps repeating that she does not want to hire anyone over 40 because they are on the “back nine” of their career.  She has directed me to exclude candidates of a certain age.  Isn’t this illegal?  How can she tell me that this is the right path?

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A: Unfortunately you have been placed in a very difficult position.  You probably have an inclination that excluding one group of candidates is not a wise decision, but you are being pressured to do just that, by your manager

I consulted Amy Carlin, Esq., a partner at Morgan, Brown and Joy, LLP.  Carlin and I reviewed your question and she shared my concerns.  Carlin comments, ” Yes, it is illegal to make employment decisions, including hiring, based on the applicant or employee’s “protected class or characteristic,”  which includes age (40 or over pursuant to Massachusetts state law and federal law).  Other protected classes in Massachusetts include race, national origin, religion, sexual orientation, among others. The manager here is making assumptions about what an applicant over 40 will be like in the workplace and seeks to exclude candidates based on their age – this is precisely what the anti-discrimination laws are meant to protect against.”

Instead it is better to focus on the requirements of the job description.  What exactly are the skills, knowledge and attributes required for the open position?  Carlin advises her clients to “develop interview questions that directly relate to these and the legitimate business requirements of the job. Interview questions that will lead a candidate to reveal that they are in a protected class are prohibited by law; investing in training for managers in this area is a smart move and one that will protect against discriminatory decisions such as the one the manager in the question is about to make.”

Tech companies have a bit of a tarnished reputation when it comes to hiring workers with a few gray hairs.  In 2014, the median age of workers at Facebook was 29, according to a report by Payscale.  At Google and Amazon, it was 30 in 2014.  Yet, the median age of all American workers is closer to 42 years old, according to the Department of Labor.  Employers will often tout that they are eager to hire a diverse workforce, but sometimes that diversity leaves out those who are 40 or over.

Companies are smart to include a broad pool of candidates.  With unemployment in Massachusetts hovering around 4%, employers need to tap a wide range of talent.

Pattie Hunt Sinacole is a human resources expert and works for First Beacon Group in Hopkinton, an HR consulting firm. She contributes weekly to Boston.com Jobs and the Boston Sunday Globe Money & Careers section.

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