HR Management & Compliance, Recruiting

Name, Sex, and (Not) DOB? Connecticut Bill Could Ban Asking About Age

In January, Connecticut joined the growing lists of states that have banned employers from asking about an applicant’s salary history. Now, during the state’s 2019 legislative session, a new bill is making the rounds that could ban Connecticut employers from inquiring about an applicant’s age.

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Even if you don’t recruit in Connecticut, this is still a good excuse for a quick reminder on the dangers of seeking information about a job applicant’s age.

What Proposed Legislation Says

The “don’t ask” bill, which was introduced by a conglomeration of about 25 representatives, would amend the Connecticut General Statutes “to prohibit employers from inquiring about date of birth or date of graduation on employment applications.” The stated purpose of the bill is to “reduce age discrimination in job hiring.”
If passed, the bill could require employers to change their standard online application forms, which may ask for, among other things, date of birth and year of graduation from educational institutions. The restriction could be an inconvenience, but it might not be such a bad thing in the long run.

There Is Such a Thing as a Dumb Question

That’s because you probably shouldn’t be asking for age information anyway. Age discrimination is already outlawed by federal law (the Age Discrimination in Employment Act, or ADEA) and state law (the Connecticut Fair Employment Practices Act).
There are numerous differences between the two Acts (e.g., the federal law applies to employers with 20 or more employees, while the state law applies to employers with 3 or more employees). Both laws, however, protect individuals over the age of 40 from various forms of age discrimination.
Employers that explicitly inquire about age risk making an applicant think they’re using it as a factor in hiring. And disgruntled applicants who fail to get hired—and know the prospective employer asked about their age—may think they weren’t selected because of that information.
These candidates may sue, and in a worst-case scenario, a jury may ask why the employer was focused on age if it didn’t take the information into consideration. For all those reasons, it’s best not to focus on or explicitly inquire about a person’s age (or any other protected class for that matter).
It’s also a good idea not to ask about age because, to be frank, it’s usually fairly obvious. You usually know an applicant’s age to a reasonable degree of certainty, even without asking. Many applicants will put the year they graduated from college or the date they started their first professional job on their résumé.
If you require college transcripts from applicants, you’ll know how old they are, too. At the least, you’ll have a good idea about their age when they come in for an interview. In a nutshell, you don’t need to ask about age and risk the applicant thinking it’s a factor in your hiring decision. You already know.

Bottom Line

The practical effect of the proposed “don’t ask” bill may be not that great. It wouldn’t prohibit applicants from submitting information that reveals their age. It would simply prohibit Connecticut employers from asking directly about birth and graduation dates. But it wouldn’t stop you from requiring transcripts, which show what years a person attended a school.
Regardless of whether you can ask about age, however, you probably shouldn’t do so or make any other obvious attempts to discern a prospective employee’s age. To learn more about this proposed bill, click here.
Brendan N. Gooley is an attorney at the Carlton Fields law firm in Hartford, Connecticut—and editor of Connecticut Employment Law Letter. He can be reached at bgooley@carltonfields.com.