Age shouldn’t matter when it comes to serving up grilled dinner. But, at Seasons 52 it did. The national restaurant chain was charged with age discrimination for denying applicants age 40 and older jobs at 35 locations across the country. Parent company Darden Restaurants recently settled with the EEOC for $2.85 million.

While being a clothing model or construction worker may require a certain body type or physical ability, Seasons 52 restaurant chain doesn’t have a unique brand image, nor do their front or back-of-house jobs demand rare skill. Generally speaking, it’s against the law for a business to discriminate based on age if the applicant can perform the requirements of the job.

There are a number of things businesses can do to remain in the clear when it comes to age discrimination. Here are our Top 5:

  1. When advertising for the job, make it known that you’re an equal employment opportunity employer. The EEOC specifically states that it is illegal for an employer to advertise for a job that “shows a preference for a job because of his or her race, color, religion, sex, national origin, age, disability or genetic information.” Did you know this includes the location you advertise in as well? If you avoid advertising in less affluent areas, it could be proven to have a detrimental effect on a particular class of people.
  2. In the interview, know what you can ask, and what you shouldn’t. Don’t ask about age, date of birth, martial or familial status, sexual orientation, national origin, citizenship, race, color or religion. Present the interviewee with the functions of the job and assess their ability to do it. Don’t ask outright: “Do you have kids?,” for example. If the topic comes up in the interview, then it’s ok to discuss, but don’t initiate it. 
  3. Do run a background check. A lot of employers don’t do it, but it’s wise to back up what you’re told in the interview. If you’re hiring drivers, you want to make sure they have a license and don’t have DUIs or hit and runs on their record. When hiring an account manager, you’ll want to make sure they don’t have a conviction of embezzlement. Check with your local authority having jurisdiction (AHJ), as each city and state may have different ordinances when it comes to background checks. For example, in California, you can’t run a background check until after the offer of employment has been made.
  4. Have very clear job descriptions. Without a job description, should you decide not to hire someone, or fire them soon after they’re hired because they don’t fit into your culture or they can’t do the job, you’ll have something in writing to back you up. Make descriptions as detailed as possible, with a clear, concise list of job duties and expectations. Have one for each position.
  5. Train managers on fair hiring practices. Whether you do this through your internal HR department, or a third party, make sure everyone conducting interviews on your behalf is trained on the dos and don’ts of fair hiring practices. In the case of Seasons 52, interviewees were told the company was “looking for someone younger.” This could potentially have been avoided with proper training. 

Have EPLI coverage to back you up

When all else fails, employment practices liability insurance (EPLI) coverage will protect a company from age discrimination claims of both employees and perspective employees. A typical EPL policy will cover both defense and indemnification costs up to the limits of the policy. Contact your HUB EPL specialist make sure you have the right coverage limits for your business’ risk and exposure.