Avoid the EEOC ‘Letter Bomb’ With Advocacy and Facts

Hello Jeff,

I benefit from your regular column in The Fordyce Letter, and thought I’d run this question by you to obtain your thoughts.

I am working on a search for a high-growth technology company here in the Bay Area that is requiring a very specific skillset in the area of electrical engineering standards/compliance for the U.S. and overseas markets. I had a candidate apply who brings over 40 years of experience, and upon initial conversations seems to have the subject matter expertise necessary for the job.

My question is this: How do I present this candidate to my client in a manner that does not discriminate on their age, but my professional opinion tells me that they may not be the ‘long term’ candidate my client is ideally looking for?

As with any client, their appetite is very low for hiring someone who may likely retire in a few years, causing them to re-initiate the search. Plus, this type of placement may prove risky in that the person may end up not being a fit within the guarantee period, causing me to have to refill quickly or return the fee I’ve worked hard to earn. I also have concerns that this candidate may not be the right culture fit with this entrepreneurial, ‘young’ company?

I realize that for many individuals within retirement age, retirement just isn’t an option, given the market downturn, etc., and I suspect this candidate is in this category. The candidate told me right out the gate that they wanted this job before I was even able to tell them about the company, geographic location, etc. I’ve refrained from asking about their motivations for finding a full time position at this stage of their life/career as I’m very conscientious about age discrimination. I want to be fair, and approach this as a business decision that needs to be made.

Thanks for your help and guidance.

Jen

Principal

Jeff Says: Beware the Risks

Dear Jen,

These are important questions from a favorite Fordyce fan. I’m delighted to help.

Recruiters are the most vulnerable to job discrimination charges, and are the most unprepared to defend themselves. The reasons are:

  • They don’t intentionally discriminate based upon “suspect criteria,” so think they can escape liability.
  • They don’t realize they have the same legal exposure as employers under all federal, state and local anti-discrimination laws.
  • They are not equipped with in-house human resources specialists and employer lawyers for ongoing advice and legal defense.
  • They personally deal with tough government enforcers, so tend to lack objectivity.
  • They lack the training, time and financial resources to mount an effective defense.

So let’s start leveling the playing field with this exercise. Start by going online and following these simple steps:

  1. Go to www.placementlaw.com.
  2. Click the Placement Manager’s Law Quiz button in the middle of the bottom row.
  3. Take the PMLQ.
  4. Click the Placement Law Language Quiz on the right side of the bottom row.
  5. Take the PLLQ..
  6. Check the Answers to Placement Law Quizzes button at the end of the bottom row.
  7. Grade yourself.
  8. Return here and resume reading.

Age discrimination – ignoring priceless knowledge and wisdom — is the most pervasive discrimination in the hiring process. Since we all age, everyone who works for someone else is a potential victim. That means geometrically more age discrimination exposure for those who place.

Yet as a recruiter, you’re a unique facilitator to overcome all forms of illegal job discrimination.

The two ways you do this are:

1. You advise with advocacy

In the words of Fordyce founding father Paul Hawkinson, “Those who need advice don’t heed advice.”

By the time you tell some helpless hiring honcho that he needs someone with a different profile, you’re too late. He rejects it. No sale.

But convince him (as a “consultant”) to meet your MPC (most placeable candidate) with a different profile than he (thinks he) wants, and you can throw away the job description. Age considerations evaporate because age isn’t job-related.

Selling is really all it’s about. Advocacy.

2. You force with facts

A specific candidate is a commodity – a walking, talking cluster of facts. Not some abstract construct on a committee-generated job description.

What usually happens when you identify an older candidate? You take his overwritten resume and focus his background to conform to what the client really needs. The more job-specific the revised resume, the less age-related considerations matter. That becomes the script for candidate facts that are repeated even past the start date.

Lawyers say “facts are stubborn things.”

Forcing facts for five-figure fees is what you do best.

Finding the right job book coverI discussed the value of recruiters to older candidates in Finding the Right Job at Midlife, saying:

Recruiters are successful because they know where the action is in the job market. They know employers from the inside, where midlife politics and age discrimination hide. They know who has exciting products on the boards, and who is about to lose key employees. They know who promotes from within and who stifles creativity.

Recruiting and placing is truly a calling. Nobody explodes human potential the way you do.

Menacing EEOC Letter

But disclosing – even considering – any age information is dangerous for recruiters. Your sensitivity and genuine desire to help can result in an EEOC letter bomb serving you with notice that you are now a “Respondent” in federal “Charge No. _________.”

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The letter (on menacing top-heavy EEOC letterhead) reads like this:

Dear Mr./Ms. ___________:

The Equal Employment Opportunity Commission (“Commission”) enforces the Age Discrimination in Employment Act of 1967, as amended, 29 USC 621, et seq. (“ADEA”). The ADEA protects workers forty (40) years of age and over from age discrimination in such matters as hiring, promotion, discharge, compensation and other terms, conditions, and privileges of employment.

By this letter, the Commission informs you that it has scheduled an investigation of your organization to determine its compliance status under the ADEA. Specifically, the EEOC will examine Respondent’s [your organization’s] recruitment practices as these practices relate to equal employment opportunity for persons forty (40) years of age or older. The investigation will focus on job postings and recruitment practices which may adversely impact applicants and job seekers forty (40) years of age or older [“older job applicants’].

Pursuant to 29 CFR 1626.15(a), Respondent is requested to provide information or reports from data contained in its records. A First Data Request is enclosed.

This investigation will be conducted under the authority of Section 7 of the ADEA and Section 1626.15 of the Commission’s regulations. Should you have any questions, please contact the assigned Investigator.

Sincerely,

____________________________

Federal Investigator

“Sincerely” indeed. That explosion you just heard is the start of several years of placement-blowing recruiting reverberation you truly can’t imagine. The merits of the charge are not the issue, as you’ll soon hear from former and potential clients.

Protestations about your innocence just annoy the feds. That is not a good thing when they visit, have you visit, contact all clients, contact many candidates, serve intrusive second, third and fourth data requests, and deliver more unpleasant surprises.

Of course, the whole concept of a recruiter discriminating based upon age or any other non-job related criterion makes no sense. You spend your days (and nights) trying to place people. What would be your motivation to exclude them from being placed?

I’ve probably reviewed or participated in every major age discrimination case involving our business since the ADEA was enacted. I can’t recall a single case where the recruiter intentionally discriminated based on it.

But like those, yours could be a biggie.

So my advice is to do everything possible to make that match, and then get out of the way. Every recruiter makes successful goofy placements.

Hope this one is yours, Jen!

Thanks for asking.

Jeff

More than thirty-five years ago, Jeffrey G. Allen, J.D., C.P.C. turned a decade of recruiting and human resources management into the legal specialty of placement law. Since 1975, Jeff has collected more placement fees, litigated more trade secrets cases, and assisted more placement practitioners than anyone else. From individuals to multinational corporations in every phase of staffing, his name is synonymous with competent legal representation. Jeff holds four certifications in placement and is the author of 24 popular books in the career field, including bestsellers How to Turn an Interview into a Job, The Complete Q&A Job Interview Book and the revolutionary Instant Interviews. As the world?s leading placement lawyer, Jeff?s experience includes: Thirty-five years of law practice specializing in representation of staffing businesses and practitioners; Author of ?The Allen Law?--the only placement information trade secrets law in the United States; Expert witness on employment and placement matters; Recruiter and staffing service office manager; Human resources manager for major employers; Certified Personnel Consultant, Certified Placement Counselor, Certified Employment Specialist and Certified Search Specialist designations; Cofounder of the national Certified Search Specialist program; Special Advisor to the American Employment Association; General Counsel to the California Association of Personnel Consultants (honorary lifetime membership conferred); Founder and Director of the National Placement Law Center; Recipient of the Staffing Industry Lifetime Achievement Award; Advisor to national, regional and state trade associations on legal, ethics and legislative matters; Author of The Placement Strategy Handbook, Placement Management, The National Placement Law Center Fee Collection Guide and The Best of Jeff Allen, published by Search Research Institute exclusively for the staffing industry; and Producer of the EMPLAW Audio Series on employment law matters. Email him at jeff@placementlaw.com.

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