The Age Discrimination in Employment Act makes it illegal for employers to discriminate against any employee or applicant for being 40 years of age or older. However, it is not illegal to simply ask an applicant's age.
This answer is a general interpretation of the law and is not fact specific to your case. Likewise it does not create an attorney-client relationship. You should seek an attorney for a review of your specific facts and documents. http://www.johnphillipslaw.com
This is a very high risk question. If the purpose of the question is to weed out applicants who are over 40, it would be illegal. If you are over 40 and believe you have been denied a job because of this question, it would be evidence of age discrimination.
They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.
According to the Department of Fair Employment and Housing Fact Sheet, it would not be appropriate. Accordingly, a complaint could be filed with DFEH over such a question. Here's a link to the DFEH Fact Sheet...
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I agree with my colleagues and it would depend on whether the question was used to discriminate against those over 40, which is prohibited. Discriminating against younger employees based on age, however, is permissible.
Lots of employers -- public and private, sophisticated and not, large and small -- ask for this info and info about race and gender and national origin, too. They use the aggregate data obtained in response to track whether the company is meeting its EEO goals and objectives; to make reports of EEO category gains and objectives to the EEOC and that are required for certain governmental contracts and grants; to craft and choose and fine-tune employment benefits; and multiple other legitimate and lawful purposes.
It is sometimes tempting for laypersons and attorneys alike to see the buzzword or identify the subject issue and generalize from that to "you have a great claim." But great cases and sound claims aren't based in that kind of "close enough is good enough" generalizing. Law is not a game of "gotcha." If it was that easy, anyone could do it.
Discrimination on certain bases is unlawful but in no circumstance is discrimination established or proven without evidence of discriminatory action. A certain care and precision in factual analyses is essential to properly evaluate even the most simple of situations.
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