When Does Older Workers Not Getting Hired Become Age Discrimination?

Workers who are trying to find a job in their 50s and 60s are finding it very difficult to find jobs, because many times, companies aren’t willing to hire older workers. And while this is considered age discrimination, one of the protected categories in the Kentucky Civil Rights Act — it’s just as illegal to not hire someone because of age, race, or religion as it is to fire them — it’s very hard to prove.

Older workerIn my years as an employment law attorney, I’ve had maybe one discriminatory refusal to hire a worker because of age. The problem is, it’s virtually impossible to prove age discrimination unless the employer says something stupid during the interview, or told the interviewee that their age was the reason they weren’t being hired.

If there’s a distinct pattern that someone who’s 55 is capable and competent, but is not getting hired, without that proof, we just can’t show that the person is being discriminated against. You need a situation where the employee goes in for an interview, doesn’t get hired, and either the HR person or employer says “we like you but we’re just looking for someone younger.” Even better, if they said this in an email, that’s the written proof you need.

While people can often say and do things they shouldn’t, this is a pretty rare instance. But it’s not unheard of. I once had a case where an employee went on an interview, and said he had a learning disability. He was forthright about the disability in the interview, and stressed that he could still do the job. My client said the employer said he didn’t want to hire my client because of the disability. We pursued it as a discriminatory refusal to hire, but the employer denied saying such a thing, which put the burden of proof back on us.

Refusal to hire cases can be very tricky because of something called disputed intent. This involves the intent of the hiring manager as he or she makes the decision not to hire someone. As the Second Circuit Court has said, “Rarely will there be a smoking gun evidence of discrimination.”

If you believe you’ve been discriminated against because of your age, whether you’ve been fired or not hired, and feel a legal response is your best option, please contact the Cassis Law Office at (502) 736-8100 to see how we can help.

Photo credit: Viewminder (Flickr, Creative Commons)