To settle an age discrimination lawsuit brought against a Wisconsin employer by the U.S. Equal Employment Opportunity Commission (EEOC) pursuant to the Age Discrimination in Employment Act (ADEA), the employer will pay $90,000 to an applicant rejected in favor of someone "more junior."

According to the allegations contained in the lawsuit, Exact Sciences Corporation, and its third-party recruiter, told a 49-year-old applicant for a sales position that she was "overqualified," and that the organization was "looking for someone more junior that can ... stay with the company for years to come."

The consent decree resolving the lawsuit also requires Exact Sciences to provide additional training on age discrimination to its hiring managers and make sure future third-party recruiters are aware of its age discrimination prevention policy. "Exact Sciences to Pay $90,000 to Settle EEOC Age Discrimination Lawsuit" www.eeoc.gov (Dec. 14, 2023).

Commentary and Checklist

You can outsource hiring, but not the liability associated with hiring.

To avoid liability, employers that use third-party recruiters to hire applicants must make sure that the recruiters adhere to the ADEA and other EEO laws.

Before contracting with a third-party recruiter, check what policies and training it has in place to ensure compliance. Only hire those recruiters with policies and procedures in place to ensure compliance. Part of training should include the elimination of ageist phrases like "looking for someone more junior", "someone who can stay with us a long time", "overqualified", "high-energy", "fast-paced," "fresh perspectives," "progressive" "digitally upskilled", "digital native" (young) vs. "digital immigrant" (old), and "up-to-date with current industry jargon."

Here are additional best practices to help avoid age discrimination in hiring:
 

·  Do not use words or phrases that signal a preference for younger workers

·  Do not state that an older applicant is "overqualified" for a position or has "too much experience"

·  Avoid expressing a preference for applicants without experience including using terms like "lack of experience preferred"; "overqualified applicants need not apply"; or "experience not required" in written job advertisements

·  Do not discuss whether an older applicant is "too expensive" during interviews

·  Do not express a preference for applicants that are "recent graduates", "younger workers", or "able to grow into the job"

·  Never describe positions in terms that refer to age-related stereotypes. For example, listing preferences for applicants with an "open mind", who can work at a fast pace, or have fresh ideas and experiences

·  Ensure that older applicants are considered at the same rate as younger workers

·  When discussing applicants, do not use words or phrases referring to the applicant's age or age-related stereotypes

·  Do not include questions about age or retirement preferences in interview questionnaires or applications

·  Provide age discrimination training for all employees involved in the hiring process