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January 2012

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A job counselor sent me the following question via email:

Many of our unemployed clients ask us about illegal questions in the interview and on the application. The most frequently asked question on applications that is clearly intended to learn a person's age is Date Of Birth. Is there any advice we can give to our people about answering these type of questions on their application forms?

I know this is a problem that many job seekers encounter, so I sent this question to a variety of experts in career consulting and human resources in order to get some advice the counselor could pass on to her clients. I am also presenting you with their responses in order to offer some suggestions should this situation arise.

Please note that while everyone in this list is an expert in his or her given field, no one here is a lawyer. Accept these suggestions for what they are -- suggestions -- and not legal advice.

Jerry Vastano, career management consultant

Employers are allowed to ask if applicants have attained a certain age, i.e., "Are you 21 years old or older?" if the job requires the person to serve alcohol, for example. Employers cannot ask for the date of birth until after the applicant is hired.

There are no illegal questions, per se. That is, legislatures have not passed laws prohibiting specific questions. There are inappropriate questions that tend to focus on non-ability factors, such as race, sex, age, marital status, religion, etc. Questions that focus on these areas need to be avoided. For example: "That's an interesting accent. Are you from the West Indies?" while seemingly innocent, could be seen as discrimination based on race, if the applicant is not hired.

Equal Employment Opportunity laws apply to government contractors and most, if not all, states have their own sets of EEO laws that apply to all employers. There may still be small companies that ask idiotic or blatantly discriminatory questions on the application or during the screening interview. It is best to leave these questions blank on the application. When asked an inappropriate question during the interview, the applicant should ask :"How does that affect my ability to do this job?" These type of queries are probably symptomatic of a poor working environment to begin with and applicants should not hesitate to end the interview or take themselves out of the running for the job.

Nick Corcodilos, author of Ask The Headhunter (Plume, 1997)
www.asktheheadhunter.com

I'm not a lawyer and this is not legal advice... but my discussions with experts suggest that it is not illegal for an employer to ask your age or anything else, as long as they do not use that information to discriminate against you. Take that as you will, but it seems like a very important and fine line.

Pete Weddle, author and columnist.
Publisher of Weddle's -- The Newsletter for Successful Online Recruiting

I suggest that they enter their birth month and day, but not the year. That way, they are answering the question (which may be required if they are submitting an electronic application) but not providing information that may hurt them. If they are queried, then I suggest that they politely but firmly indicate that a request for their year of birth is both inappropriate and against the law. If the employer persists, they should move on ... in today's job market, there are more opportunities than there are stupid employers.

Alexa Finkler, PHR, Human Resources Generalist

My best advice is to write "over 18" in the space, if that is the correct answer. If the person is under age 18, he or she must state actual age due to certain work restrictions in the child labor laws. When seen on the application by the interviewer, a savvy HR person will not ask about it, but will know that the application needs to be updated. If the candidate is verbally asked to state actual age, they may choose to answer with something like "I am considered an adult by law", if that is correct, and then choose not to work there because the person handling the interview is obviously in need of training in this area.

What I would not do in that situation is point out to the receptionist or whoever handed them the application that the question as stated is illegal. No sense flagging oneself as potentially litigious.

Mark Mehler, Co-author of CareerXroads

Applicants can be asked if they are under the age of 18 as people are not allowed to work certain hours or with different types of equipment if below that age. After that, job applicants if asked age on a application should leave it blank as it is an illegal question in the USA.

Gerry Crispin, Co-author of CareerXRoads

Don't fill it out- it isn't relevant ... until you come in to interview.

Fran Quittel, YourCareer.com.

When someone has 20 years of experience (for example), I encourage them to say "over 10" rather than "over 20". I also encourage them to highlight their latest, most recent skills rather than something left over from 20 years ago. Example, if they say "20 years doing Assembler programming," then this is clearly outdated and they are put in the "old fossil" group. They could say 2 years doing Java or C++ programming which is the most recent skill. Also, I want them to look like they would fit into a newer environment. If they show up and there is a serious disconnect between how they look and their attitude, they can't expect much of a positive response. If they show up and they are "older" but really into the newer technologies, jazzed if you will, working on web sites or on e-biz apps, then they can be 100 and they'll get hired.

I'm adding this final comment anonymously. The author sent it to me privately to clearly state his/her opinion. It is controversial and forceful, and the capital letters were added by the author, not by me.

It is important to remember that you are the only one who can determine how you will handle this matter or others like it should the need arise. Your job counselors and consultants can give you all kinds of advice, but you must ultimately choose plan of action that you are most comfortable pursuing. -- MFD

a recruitment advertising executive

The employer MUST be able to support the use of any question as job relevant. Asking age in 99% of the situations one might find oneself is is a) without relevance, b) unsupportable and c), in a court of law, a guaranteed loss for the employer.

The advice should be TOTALLY IGNORE THE QUESTION until you are offered the position. 99 times out of 100 that will be that.

However, if the firm follows up, you have an idiot for an interviewer and the likelihood of you getting a job based on some logical skill-based process is now non-existent. Therefore, I would advise first stating the obvious- "Just so I'm clear, did you ask me for my Date of Birth?". If the answer is "yes", then follow up (smiling all the while) with, "Could you help me understand how my age affects my ability to do the job?...or your decision on whom to hire?"

Write down everything they say verbatim. Really do it. Pause dramatically two or three times to ensure you wrote everything. Don't say anything or explain yourself. Just do it. Keep Smiling. Then put your pad away and answer the question truthfully.

If you don't get the job, you have plenty of options including netting at least a year's salary to tide you over. If you do get the job, make sure the interviewer gets trained or fired.

Candidates are in charge. It's time they acted that way. We are in a period of extremely aggressive job expansion with tremendous competition for the best employees. This is not the time to take a timid stand regarding your rights.

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