In 1995, the Ninth Circuit Court of Appeals held that “overqualification” is not the same as age discrimination, says a report from law firm Seyfarth, Shaw, Fairweather & Geraldson. The decision in the EEOC v. Insurance Co. of North America case held that “an employer was not guilty of age discrimination when it refused to interview or hire a job applicant on the basis of his ‘overqualifications’ for the job,” according to SSF&G.
Small businesses with over 20 employees — those covered under the Age Discrimination in Employment Act of 1967 — breathed a sigh of relief. The EEOC argued that the company committed “age discrimination” when it rejected an applicant for a position because, based on over 30 years of experience, he was “overqualified.” The employer had felt that, because of his many years of experience in the insurance field, the applicant would delve too deeply and spend too much time in examining accounts if hired for the loss control representative job. The court ruled that “the employer acted for a legitimate business reason, and not because of the applicant’s age.”
However, the court did warn employers that in certain cases, citing “overqualification” could be illegal age discrimination. Is this the final word on this worrisome matter?
No such luck. SSF&G note that “The Ninth Circuit’s decision is at odds with the Second Circuit’s decision in Taggart v. Time Inc. The conclusion, then, is that discrimination law is still being wrestled out, and small business employers need to proceed cautiously
Sometimes employees attempt to use factors directly or indirectly related to age, such as salary, pension eligibility, and years of experience, when bringing legal action. Online business commentator Sheryl Nance-Nash writes that recently, a U.S. district judge sympathized with Donald Hamm, a 54-year-old Brooklyn accountant who was turned down for a position. The employer told him he was “overqualified.” In this instance the judge concluded that perhaps this was, in fact, a code word for “too old.” The case is pending.
“Small business owners sometimes do dumb things in the hiring process,” states human resources consultant Bill Handler. Some things small businesses can do to protect themselves, according to Nance-Nash, include tightening up considerably on how and when you tell an applicant he or she’s overqualified.
“Junk the term ‘overqualified’ itself,” Nance-Nash advises. A much better tack is to tell an applicant, “Your experience doesn’t match the requirements for the job.” Similarly, stay away from describing intangible qualities themselves as part of a job requirement, such as “energy” or “image,” which imply age and appearance.
The less subjectivity, the better. Clearly defining positions to the point where you know and can explain every element of a job is a good precaution, giving you more concrete reasons when it’s necessary to inform an applicant that he’s not whom you are looking for.
Some small businesses refrain from asking for a date of birth on applications, and some states even prohibit listing graduation dates on application forms. Be careful about offering different (read: lower) salary scales to people who receive a pension or Social Security payments as well.
Finally, sit down and examine just what it is you may not like about hiring older, or overqualified, people. With as tight a labor market as there is today, they may be a good pool of labor.