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Comment by officemonkey | Hacker News Reader

Fun fact: In the U.S., you can age discriminate (ie: not hire people under/over a certain age) all you want, as long as the person isn't over 40.

So you can certainly legally not hire people over 35 years old, as long as they're not yet 40.

Once they're 40, you can not discriminate against them because they're too old (eg: Fred can't do that job, he's 50 years old) or too young (eg: We can't hire Joe for the CEO job, he's only 42.)

Of course there are many reasons to hire/not hire someone, but if you're using age as a criteria, you are on very shaky ground legally.

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In practice, though, since hiring decisions are so subjective, couldn't one justify it with "we felt that they wouldn't be a good fit" and be off the hook?

Yes, it is often easy to circumvent the law.

If the person isn't "a good fit" then yes, as long as the record (your emails) supports that decision. Email saying things like "he's so much older than the other applicants" or "he's got school-aged kids, so his head won't be in the game" will be found in discovery and will lose your case.

Another thing to consider: people who file discrimination lawsuits usually do not prevail on the discrimination claim, they prevail on the retaliation claim. It is often quite easy to show retaliation, especially if it is an employee and not an applicant.

Ah, interesting, thanks. So these laws aren't as unenforceable as I thought, that's good.

Why is that good?

Because discrimination against criteria that have nothing to do with job performance is bad.

More generally, I think those criteria are proxies for actual performance. For example, you can infer information about someone's performance from their age, absent of any other information, but when you do have the extra information and still rely on proxies, it's bias.

>you can infer information about someone's performance from their age

I would argue that you can not infer much about someone's job performance based solely on their age.

Sure, not much, but some.

I completely disagree.

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