The following case studies demonstrate how the EEOC determines if an ad is discriminatory against individuals who are at least 40.
Case Study 1. Chris, a 65-year-old man, saw an ad in the newspaper for a cashier at Groceries "R" Us. Their advertisement specified that:
"Applicant must be young and energetic and possess excellent customer relations skills. Applicants who are selected would be required to stand for long periods of time and to lift 20-30 pounds."
Chris contacted the EEOC to institute a charge against at Groceries "R" Us.
In this case, the Commission would find a violation. By use of the word "young," the ad specifically indicates a preference, limitation, specification, or discrimination based on age. Such an ad would almost certainly deter many qualified older persons from applying.
Note that if the same ad appeared with only the word "young" deleted, it would probably be acceptable. Persons of all ages can be energetic and possess excellent customer relations skills. Further, the requirements to stand for long periods and to lift 20-30 pounds are not age-related criteria and, in any event, appear to be legitimate requirements for the job in question.
Case Study 2. Pat, a 57-year-old graphic artist, claims that Madison Inc., an advertising firm, has discriminated against him based on age by publishing an advertisement that he feels clearly deters older persons from applying. Madison Inc.'s ad stated:
"Young-thinking, 'new wave' progressive advertising firm has openings for entry-level position for graphic artist with no more than three years' experience. We specialize in music videos and broadcast productions for a youthful audience. Our main focus is in the area of animation. Our clients include famous rock stars. If you have fresh, innovative ideas and can relate to our audience, send your resume."
While the ad does not contain explicit age limitations, read in its entirety, it does appear that persons in the protected age group would be discouraged from applying for the position. Madison contends that it does not discriminate against older persons and would hire a 75-year-old applicant if he or she is qualified and willing to work for an entry-level salary.
However, on further investigation it was found that the employer has no employees over 30 years of age. It was also revealed that the firm recently turned down two fully qualified graphic artists, ages 47 and 67, who were willing to work at an entry-level salary, even though both possessed more than three years of experience.
In this context, the EEOC would probably take the position that the ad is designed to deter older persons from applying. The EEOC would seek to have Madison Inc. change the ad to read:
"...young-thinking persons of any age with at least three years' experience and willing to work at an entry-level salary."
The EEOC might find a violation if an advertisement indicates a preference for retirees, since persons protected by the ADEA (at least 40) might not be of retirement age and would be deterred from applying for the job. Again, it depends on the ad.
Case Study 3. Bobby Jo, a 42-year-old woman who is actively seeking part-time employment, contends that she was deterred from applying for a position because of the employer's ad. Suds-N-Duds, a local laundromat, advertised in the newspaper as follows:
"Opening for a person seeking to supplement pension. Part-time position available for Laundromat Attendant from 9:00 a.m.-2:00 p.m., Monday-Thursday. Responsibilities include dispensing products sold on premises, maintaining washer, dryer, and vending machines. Retired persons preferred."
This ad limits the applicant pool by indicating a preference based on age. Persons rarely receive pensions or attain retirement status before 55 and frequently not until age 65. Thus, the ad deters younger persons within the protected age group (i.e., persons over 40 but less than 65) from applying. Therefore, it is a violation.
Case Study 4. In response to an acute labor shortage that exists throughout the southeast region of the country, The Fix-It Factory, a large home-improvement chain, publishes the following advertisement:
"Wanted: Individuals of all ages. Day and evening hours available. Full-time and part-time positions. All inquiries welcomed. Excellent secondary source of income for retirees."
While the ad mentions "retirees," it isn't an illegal age-based discriminatory advertising practice in this instance. Individuals of all ages are welcomed for the employment opportunity. The reference to retirees in the ad does not indicate a preference for this subgrouping of the protected age group. Rather, it notifies them of an opportunity and invites them to participate. The language in this ad differs from the language used in Case Study 3, which suggests that only retired, pension-eligible persons are considered for employment.
Bona fide occupational qualification. Finally, if an advertisement clearly discriminates on the basis of age, the EEOC acknowledges that the employer can claim that age is a bona fide occupational qualification (BFOQ). In order to establish that age is a BFOQ for a particular job, however, the employer must show that "all or substantially all individuals excluded from the job are in fact disqualified." If a protected individual can, if fact, perform the job, this would defeat the claim that age is a BFOQ.
Case Study 5. Emacia, a 43-year-old fashion model, contends that she has been discriminated against based on age. Regal, a modeling agency, advertised in the newspaper as follows:
"Experienced models between 20-30 for upcoming spring collection of 'junior sportswear.' Applicants must bring a portfolio and references to our New York office. Only those persons in the specified age category need apply."
Emacia auditioned and was rejected when the company found out her age. During the investigation, Regal raised the BFOQ defense and stated that the "junior" collection requires applicants who have a youthful appearance. Regal further alleges that, traditionally, the "junior" fashions are targeted to younger women, generally between 20-30.
However, while Emacia is 43, she appears to be 23. In fact, Regal was in the
process of completing the paperwork necessary to hire Emacia when it noticed the
date of birth on her driver's license. Regal can't prove that persons 40 or
older have a disqualifying trait that cannot be determined unless you check the
age of the applicant. Therefore, Regal hasn't proven that age is a BFOQ and its
discriminatory ad must be changed.