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FAQs: Age Discrimination for Engineers

FAQs: Age Discrimination for Engineers

While not as transparent as racial or gender discrimination, age discrimination in engineering and other industries is a very real issue. Here are some guidelines to help navigate what is and isn’t age discrimination.

What is the law covering age discrimination?

The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. The ADEA permits employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.

The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government.

The ADEA generally makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. A job notice or advertisement may specify an age limit only in the rare circumstances where age is shown to be a “bona fide occupational qualification” (BFOQ) reasonably necessary to the normal operation of the business.

The ADEA does not specifically prohibit an employer from asking an applicant’s age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA. If the information is needed for a lawful purpose, it can be obtained after the employee is hired.

Is it okay to publish an ad asking for a “Recent Grad” or someone who graduated at a recent date?

No, several companies have done this and have been told to change their ad. The ADEA generally makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements.

Is there any way to evaluate an engineer’s value to a company?

That may be difficult and it may also depend on the company itself. One way is to determine whether the employee is innovative, which depends on the definition of  “innovative.” Other ways would be to count all the patents the employee has credit for, or whether the engineer has written articles that aid the company in terms of exposure and in adding new engineers. Still another way might be to see what profitable products he/she has developed for the company. Finally, it may depend on the individual who evaluates the employee and whether it is an honest work evaluation.

Instead of making assertions about innovation provided by older workers, what about similar assertions for a specific racial or cultural groups? Why is age a fair criterion and not race? 

Bringing up race would be counter to American racial sensitivity, but it could also result in missed opportunities for employers. Whatever the average level of innovation among various races, there are many who could be quite talented.

What is the best way for an older engineer to find a new job?

Depending on their size, most companies value older employees with good experience. However, administrators may view people as an expense and older engineers are more costly than younger engineers. Coming in as a new employee through engineering contacts probably will have a higher degree of success for older workers than if a human resources (HR) contact handles the situation.

Have there been changes in available engineering jobs since the military/aerospace boom of the 1950s and 1960s?

The U.S. has become more industrial and consumer-products oriented since the end of the Cold War and the military/aerospace employment boom. Now, the Department of Energy has been funding programs. Even though special programs still exist, there is always a possibility of a lost or suspended contract. In the “old days,” there was always the pressure of losing a contract. When times were “good,” companies would hire and when times were “bad” there were layoffs. The possible “pink slip” was always in the back of your mind.

Does networking at a conference help with a new job?

If you display technical intelligence and good range of job skills at a conference, there is always a chance that someone will notice and contact you if there is a job opening.  

How does an engineer reconcile the age vs. pay dilemma?

If an engineer realizes that the more he gets paid makes him more vulnerable to be laid off if there is a recession or a downturn in the company’s business. He could always refuse any raises, but that is not realistic. That engineer has to do whatever possible to make himself more valuable to the company. The situation is complicated because he is working with other engineers while competing with them. In addition, there may be politics and prejudice involved in whether the engineer is vulnerable for a layoff.  

Is there such a thing as job security?

That’s unlikely. If a company has to downsize, anything is possible. The only true security you have is the money in your bank account.  

Doesn’t a company risk releasing older employees who could help a competitor?

Obviously, there have been cases where older guys are pushed out of large corporate entities, primarily for being older (and higher paid) despite the law. When a company eliminates some of the most experienced engineers, it also risks losing important (and highly valuable) institutional knowledge. When that knowledge winds up at a competitor, it’s extra costly. This all depends on whether there are competing companies that could use the same engineering expertise.

Does the H-1B visa program affect engineering jobs?

It can. The H-1B is a non-immigrant visa program in the U.S. under the Immigration and Nationality Act that allows U.S. employers to employ foreign workers temporarily in specialty occupations. H-1B work-authorization is strictly limited to employment by the sponsoring employer. The normal duration of stay is three years, extendable to six years. The H-1B program requires that a foreign worker will not adversely affect the wages and working conditions of U.S. workers comparably employed. To comply with the statute, regulations require that the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment. There are ways to manipulate the “prevailing” wage to benefit the sponsoring company. Using H-1B workers could be just another way to replace older, more expensive workers with lower wage earners.

 

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