Q: I am a new supervisor working for a growing tech startup, and we have been discussing hiring plans for 2017. It’s a fun but demanding environment. My manager describes our ideal new hires 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 a career. She has directed me to exclude candidates of a certain age. Isn’t this illegal?
A: You have been placed in a difficult position. I consulted Amy Carlin, a partner at Morgan, Brown and Joy LLP. Carlin told me, “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.’’
It is better to focus on the requirements of the job description. What 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.’’
She also notes, “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 in 2014, it was 30. Yet, the median age of all American workers is closer to 42, 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.
There’s also a practical consideration: With unemployment in Massachusetts at a 15-year low, employers need to tap a wide range of talent.
Pattie Hunt Sinacole is president of First Beacon Group in Hopkinton.