Is it illegal to hire by age in the US?

Question

Maybe one of the fields that has the most "ageism" is programming and software engineering jobs.

There were multiple times I hear of the CEO or SVP at the final approval stage: "we want to hire a more junior person", and rejected the candidate and the 10 hours of interviews by 6 tech people and 3 manager level people.

Some say, before age 35, a person is most creative and productive, and it is all about productivity.

In reality, when you are 25 or 28, you are more likely to stay up working till 3am, sleep, and wake up at 9am and continue to work. However, most companies claim they want 40 hours per week and work life balance, so they won't burn somebody out in 1.5 years and then have to dump them.

Also, programming and software engineering isn't like painter or poet or novelist. They don't need that much creativity. They are more like engineers building roads or bridges, where experience is important too.

One other reason I can think of is, if the manager is 32, he wouldn't want to hire somebody 38 or 45, because then that person appears more like a manager than he or she is. (and that a 28 year old is more like to listen to the 32, and a 45 year old is probably less likely).

And just because they want to hire somebody 35 or under, isn't it ageism and therefore, discrimination by age, and therefore illegal in the US?

I even talked to a lawyer that says, "if we sue, that means these cases are flying all over the sky" (and therefore it is like people quietly accept them).

It also appears that the CEO or SVP are bold enough to even at the final offer approval stage, say "rejected. We want a more junior person."

Answer 1

The Age Discrimination in Employment Act of 1967 (ADEA) protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment.

• U.S. Department of Labor.

State child labor laws establish minimum ages for certain kinds of work (e.g. working on heavy machinery, or serving alcohol), and age limitations on obtaining commercial driver's licenses and commercial pilot's licenses can as a practical matter impose minimum ages for employment.

Usually, this is a minimum age for certain jobs between age 12 and 21 depending upon the nature of the work.

Apart from these limitations, discrimination based upon age in employment is not prohibited in the United States.

So, for example, if an employer wants to hire 25 years olds rather than 35 year olds, simply because they are younger, this is permitted by law in most or all U.S. states.

Answer 2

“A more junior person” is not necessarily age discrimination

If I have a position to fill that is suited to a new graduate then the fact that most new graduates are younger than the average workforce is not, of itself, age discrimination. Similarly, if I have a job for a senior person, they are likely to be older than average.

Age discrimination happens when, all else being equal, age becomes a selection criteria. Of course, all else is very rarely equal, so I can indulge my bias, unconscious or conscious, and rationalise that I’m not.

Is age discrimination illegal?

australia

Yes

The Age Discrimination Act 2004 protects individuals from discrimination on the basis of age in employment, education, accommodation and the provision of goods and services.

Answer 3

germany

Germany has the AGG. It is based on European guidelines, so while the local laws in each country vary and are named differently, each country in the EU will have a similar law.

Ziel des Gesetzes ist, Benachteiligungen aus Gründen der Rasse oder wegen der ethnischen Herkunft, des Geschlechts, der Religion oder Weltanschauung, einer Behinderung, des Alters oder der sexuellen Identität zu verhindern oder zu beseitigen.

Translation:

The aim of the law is to prevent or eliminate discrimination on the grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual identity.

The law is obviously more complex than that introductory sentence, but yes, there are laws to prevent discrimination by age alone. And while there are other protective laws taking priority (no, you cannot let your 5 year old work in a coal mine...), it should hinder employers to discriminate based on a number alone.

Obviously you can discriminate based on other factors. For example you can only employ a person with at least ten years of experience. That would probably prevent any person below 30 to get that job, assuming it needs an education first. The government itself does it, allowing anyone to drive motorcycles at the age of 18, but restricting certain types to having 3 years of prior experience. So if you don't own your private racetrack where you piloted one without a license but publicly documented, you will only get a license for those specific types at 21, because you can only start accumulating that experience once you are 18.

You can also (and the government is the biggest offender here) hire only people with a specific education. For example many government jobs "require" a BSc. But that qualification was only introduced in Germany in 2007. If you had the equivalent of a BSc from lets say 2003, you are out of luck. So any government job will either hire ridiculously overqualified people (the equivalent of an MSc from before is still accepted) or hire only people born after 1989.

What you mentioned, "junior" vs "senior" has nothing to do with age. Those are experience indicators. A really good developer might be evaluated as "senior" at 30, having had 5-10 years of experience, learning a lot. And I have personally seen 55 year olds that I can only call "junior", because they did not really learn a lot in their 30 years on the job and still repeat mistakes I would expect from a fresh graduate.

So "I want someone younger" is illegal discrimination.

"I want someone less experienced" is stupid, but legal.

But "I want someone cheaper, even if that means they are less experienced" is a perfectly legal business decision, and exactly what a CEO is hired to decide. Whether it is the right decision for that company at that time is something we cannot attest to, but it is always a legal and sometimes even correct decision.