Employers usually cannot consider age in hiring decisions.

Byline: Bureau of Labor & Industries For The Register-Guard

ON THE JOB

Question: I am one of the managers for an upscale residential community for senior citizens.

We recently decided to add a beauty salon.

The management team is aware that our residents expect to be able to relate to the staff, and we believe that will be especially true in a salon. Based on those concerns, we decided that we would hire senior citizens to staff the salon.

Our recruitment announcement indicated that we are looking for older candidates, so it has been no surprise to us that all of the applicants we've interviewed have been seniors -- that is, except for Jody Lynn.

Jody Lynn is 20 years old. I asked her why a woman her age would want to work at a salon that will mainly cater to the older generation. Jody Lynn said that she gets along very well with senior citizens because she was raised by her grandparents and remains close to them and their friends.

Jody Lynn has the necessary practical skills to work at the salon. She attended a well-regarded beauty school and has more than four years of experience styling hair. Before attending the beauty academy, Jody Lynn spent summers working at a very popular salon.

Today, I informed Jody Lynn that despite her obvious experience and her genuine enthusiasm to be a stylist for seniors, we decided not to hire her because of our concern that she is simply too young.

She left without saying much, but she thanked me for being honest with her.

A short time later, I received a call from one of our residents, Margaret. She informed me that she had heard from a friend (who turned out to be Jody Lynn's grandmother) that we had refused to hire Jody Lynn because we thought she was too young. Margaret informed me that it is against the law to refuse to hire an individual because of his or her age.

I am sure Margaret is right that in a situation when an employer perceives an applicant as too old, but I have never heard that an employer is prohibited from choosing not to hire someone because he or she is not old enough. What if a 14-year-old applies for a job in response to one of our recruiting announcements? Aren't we are allowed to reject such an applicant?

Answer: You are correct that the law permits employers to choose not to hire 14-year-olds based on age, but in Oregon this is true only when the applicant is under 18. Margaret is correct that applicants and employees 18 years and older are protected from employment discrimination under Oregon law.

All Oregon employers are prohibited from firing, refusing to hire, or otherwise discriminating against an individual in compensation or other terms, conditions or privileges of employment based on an individual's age when the he or she is 18 years or older. Federal law protects applicants and employees from discrimination in the workplace under the Age Discrimination in Employment Act (ADEA); however, only those 40-years-old and older are protected.

In simpler terms, age discrimination is prohibited by Oregon law whether the employer's decision is based upon its conclusion that the applicant or employee is "too young" or "too old."

There is a limited exception to the general rule that employment decisions may not be related to age. If an employer is able to demonstrate that age is reasonably necessary to the normal operation of the business the employer may have a bona fide occupational requirement (BFOR) defense to defend employment decisions based upon age. The burden of proving the BFOR is on the employer, and the BFOR defense is usually narrowly construed by courts.

For example, an employer is allowed to discriminate on the basis of age if federal laws or regulations impose age limitations for public safety reasons. An employer's BFOR defense is not justified, however, merely by customer preferences, and particularly on pre-supposed customer preferences such as what you based your recruitment of senior citizen salon applicants.

As for the situation with Jody Lynn,, it would be prudent for you to consult with an employment law attorney and immediately take appropriate corrective action. At a minimum, such action will include: revising your recruitment announcements by deleting any reference to age; offering Jody Lynn the job; and educating your workforce, including the managers responsible for interviewing, hiring and supervising employees, that age is a protected class and no employment decisions of any kind may be predicated on an individual's age as long as the individual is 18 years or older.