"I'm job hunting and came upon a listing that stated the ideal candidate would be between 40-45 years of age. When I filled out my application, I also noticed there was a date of birth section, which I left blank intentionally. During the interview, the manager I met with was impressed with my resume and qualifications but also noted that I omitted my age from the application. He then asked me how old I was. It made me uncomfortable because I'm younger than the 'ideal candidate' as listed, but otherwise meet or exceed every published qualification for this position. Can a job do this? Is this legal? Please let me know. I believe I have been discriminated against."
–KO Turner, Washington, DC
Charles F. Coleman, IV: Your question presents a host of issues dealing with age discrimination and employment law. First off, it is generally unlawful to list an “ideal candidate” as being within any particular age range. Sometimes employers will use certain code words (“youthful, energetic” or “mature, experienced”) to thinly mask their obvious preference for a particular age demographic. This is a no go. Likewise are job listings which note preferences along the lines of, skin complexion, gender, nationality, religion, or ethnic group—especially if the quality has nothing to do with the job function. For example, if a Jesuit college put out a listing for different employment positions related to their chapel staff, they could likely require their ideal candidate to be of Christian faith. That is a religious institution and the job functions would be directly related to religion. Therefore, making it a requirement does not run afoul of the law. Likewise, an all-boys or all-girls school could require that for certain positions, the jobs would need to be filled by only males or only females. However, absent position-specific situations, requirements which limit opportunities for members of protected groups (age, sex, race, religion, disability, color, national origin) are going to be in direct conflict with the law.
So, how does that work where the information has nothing to do with the position? Generally, an employer cannot require that you provide them with that information as part of an initial application. If they do, they will usually need to explain the purpose(s) for which the information will be used. For example, some employers like to maintain data on who is applying in order to determine how successful they have been at outreaching to a diverse applicant pool. In situations like these, the employer will often make this very clear and also be clear in that the applicant is under no obligation to provide the information and no penalty if they opt not to. Once an offer has been made, employers may ask for more specific information for an employee’s file but that will usually only come after a decision to hire has been made.
If a potential employer asks you for your age as part of an interview process or job application, it is almost always a “no no”. This can be a tricky situation but you have a few methods of recourse. You can respond by asking the employer whether your age will have any relevance on their decision making process and that should back down even a half-witted employer. If they press on, or a dumb enough to say “yes”, provided the position functions do not fall within the scope of those I’ve already described, you can choose to decline or answer if you wish but know, in either case, that if you aren’t selected for the position you may have established enough for a claim for age discrimination in hiring. This does not mean (obviously) that you can’t claim it was your age that kept you from a job as managing partner in a law firm when you haven’t completed your first year of law school. You still must be otherwise qualified such that the decision not to hire you was likely the result of discrimination related to your age. If you believe that is the case, you should absolutely contact your local division of human rights and the US EEOC office nearest where you live. You can consult an attorney first, although you don’t need one as the government agencies responsible for enforcing anti-discrimination laws in the workplace will investigate your claim free of charge.
At the end of the day, much of what employers do that is out of bounds comes from them not knowing any better or expecting that people won’t do anything in response.
"I know of some illegal immigrants that are working and not being paid the same as their counterparts that are not illegal. The do not speak up because they are illegal, can their company do this? Is this legal?"
Great question. Oftentimes, employers will take advantage of people who are less sophisticated due to language barriers or lack of education because the employer is banking on getting away with things with little resistance or backlash. It’s also somewhat natural that an employee who is concerned about their immigration status may not seek to be as vocal in speaking up against things in the workplace which seem out of order. Well, in this instance, the employee can breathe a little more easily. The first piece of good news is that it doesn’t matter whether a person is in America on a working or student visa, a naturalized citizen, or an illegal immigrant. If they are doing the same work and same job as others, and they are not being paid at the same rate for no other reason than their immigration status, this is most likely national origin discrimination. This area of law is covered by Title VII of the Civil Rights Act of 1964 (“Title VII”) which prohibits discrimination on the basis of race, sex, national origin, religion, or color in the workplace. It doesn’t matter what a person’s immigration status is, because Title VII and other anti-discrimination laws are about the employer and its practices, not the employee. Depending on whether there is a difference in the sex of the employees, this might also be an issue falling under the Equal Pay Act (“EPA”), which prohibits pay discrimination based on sex. Similar to Title VII, the provisions of the EPA still apply even if the employee is not a citizen. If you’re doing business in the USA, you have to follow federal anti-discrimination laws.
Now there’s obviously a second component to this, too. Most folks who find themselves in the position of knowing that they are being taken advantage of at work, are usually afraid to speak up because they are worried about losing their job or otherwise being punished. Well, there’s some more good news here. Retaliation is also covered under Title VII and It specifically prohibits an employer from going back to punish their employee for engaging in what’s considered a protected activity. Without getting too legal with it, speaking up about unequal pay—whether to one’s employer or to local or federal agencies who regulate these matters—is indeed a protected activity for which an employee cannot be retaliated against. Threats to call INS, etc. are all out of bounds and can have very serious consequences for employers. This still holds true even if the employee was wrong about the underlying discrimination. So, for example, even if there are other immigrants who are being paid at the same rate as the rest of the workforce, the employer is still not allowed to retaliate against employees who attempt to assert their rights because if they do they will face major penalties and possibly open the door for that employee to recover damages in court.
If you feel that you have been discriminated against in this fashion, you should gather all documentation to support your position, and then contact your local department of human rights on a city and state level. If your employer has a minimum of 15 employees, I also suggest that you contact your local office of the US Equal Employment Opportunity Commission. While you can hire a lawyer for this, you certainly do not need one at all and all of these agencies will investigate your charge for free. Remember that your employer cannot retaliate against you for filing a charge of discrimination against them and that without displaying the courage needed to come forward and file a charge, some employers will simply continue to do the wrong thing for as long as this egregious behavior goes unchecked.
“A couple of weeks ago on a warm Sunday I celebrated my son's 7th birthday. We invited over family and a small group of friends. We had cake and ice cream, it was pretty low key. I also used this first warm day in the season to unveil one of the gifts the kids had received for Christmas; a trampoline. All the kids and even some of the adults enjoyed it immensely. I even invited some of our neighbors to join in on the fun. Well a couple of days later a neighbor informed me they saw a couple of the neighborhood kids on the trampoline while I was at work. I shrugged my shoulders and just brushed it off. To which my neighbor said, 'You really should put up 'No Trespassing' signs. You know if one of those kids gets hurt you could really be held responsible, especially since you invited them over.'
What liability do I have as a homeowner? Do I have to put up 'No Trespassing signs? Isn't enough that the trampoline is located on my property behind the house, out of sight?”
George C. Gardner, III: After a brutal winter for people in many regions of the country, springtime fun seems well deserved and long overdue. Trampolines are a marker of the season, and it’s encouraging to know that, on the first warm day of the year, you single-handedly put the “neighbor” back in the ‘hood. That said, as with many warm-weather activities, the pursuit of fun must be paired with an equal amount of vigilance. And that’s my basic point to you today.
In many jurisdictions, a property owner’s responsibility to others on their land is determined by the status of that person in relation to the land. For example, a landowner has a greater responsibility to an invited guest than to someone who enters the property without permission, like a trespasser. And traditionally, the landowner owes no responsibility to a trespasser, except not to intentionally harm that person. But the law treats children differently. Under what is called the “attractive nuisance” doctrine, property owners owe a special duty to children who may be drawn to artificial, human-made conditions, like your trampoline. The basic idea is that there are some risks that children are not able to appreciate fully, and so landowners must exercise a higher “standard of care” to protect children from these dangers—even when they trespass.
The application of the law varies somewhat from state to state, but you want to heed the wisdom of the modern trend: a property owner’s standard of care is to do whatever a reasonable landowner would do under the same or similar circumstances. There is no bright-line rule, which makes all of the facts important. That means even in a jurisdiction where the attractive nuisance doctrine is not strictly applied, a child’s age may still be an important factor in determining your liability if a child is injured on your trampoline.
In your case, I will assume that the children are the same age as your son—seven years old. So know that children as old as twelve have been deemed unable to appreciate the risks associated with playing on a trampoline. Add the fact that you've invited the neighborhood's children to play on the trampoline at least once before. And on top of that, your neighbor has informed you that the children have trespassed, which means that the prospect of them coming again without your knowledge is foreseeable.
On these facts, you would be at least partially liable for a child's injury if you don't do anything. And even posting a “no trespassing” sign, alone, is insufficient. Seven-year-old children would not likely understand the sign or believe it applied to them when they just used the trampoline a few weeks ago—with your permission. Exercising your duty of reasonable care means taking steps to prevent a child's injury. That does not mean hiring security to guard the trampoline, but there are safeguards you can put in place.
Consider simply taking the trampoline indoors when you're not there to supervise its use. If it's too big, maybe you could remove it's legs and take those indoors. If those actions are too inconvenient, maybe you want to consider putting up a fence (maybe even with a lock), and still keeping the trampoline out of sight.
Whatever you decide, doing nothing is not a wise choice. It's better to be prudent than it is to risk having children injure themselves on your property. Now go and enjoy the warm days ahead—safely!
Charles F. Coleman Jr. is a former Kings County (Brooklyn), NY prosecutor and presently functions as a federal trial attorney specializing in civil rights and employment discrimination. Follow him on Twitter @CFColemanJr.
George C. Gardner III is a graduate of the Howard University School of Law and has practiced in government, nonprofit, and private sector settings. His experience includes constitutional civil rights law, commercial litigation, and transactional matters in the small business context. He is licensed in the State of New York where he maintains a solo practice. Visit his website and follow him on Twitter @ggiii.
Nothing in this column should be construed as legal advice, and is offered as information only. Readers are advised to consult an attorney with knowledge of the specific state laws within their local jurisdictions.