“Is hiring by ‘experience level’ illegal age discrimination?”

Question: How is it that law firms advertise open positions as being open only for lawyers with a very narrow range of experience, for example, 3 – 5 years?

I think this generally means people over a certain age – say, 30 – need not apply.

Recruiters will routinely tell candidates of their client-law firm’s refusal to even interview candidates with more than the desired amount of experience.

Isn’t this illegal age discrimination?

         New York, New York

Answer: Dear Mitch: Your question is especially interesting to me because I am one of those law firm-employers who advertise job openings the way you describe. I don’t think I intend to discriminate, but then again, perhaps I discriminate, nonetheless. These are my best answers: 

a. “Experience,” by itself, is usually considered a non-discriminatory hiring criteria. Usually, “experience level” is considered a valid, business-sense, criteria for hiring. To be sure, it could also mean “no older than.” I think using “range of experience” is a custom, especially in legal hiring, that has been around so long we are all used to it. But, then again, that does not make it non-discriminatory.
b. I don’t think “experience level” necessarily means “age level.” As for one example, I was 32 when I graduated law school. According to your letter, anyone over 30 can’t be a first year lawyer, but sure enough I was. And I went to law school with a good number of people older than I was. But, then again, those my age and older were the exceptions, not the rule.

c. I think “experience level” is primarily intended to ensure a minimum of functional ability. A 3-5 year attorney usually “knows the ropes,” but not “the fine points.” I would expect to have to train a 3-5 year attorney, but not extensively. But, then again, why limit myself to a “partially trained” attorney, and not hire a “seasoned” one? 

d. I think “experience” level is secondarily intended to set an expectation of compensation. When we advertise for a 3-5 year attorney, we usually mean “probably willing to work for less than a far more experienced attorney.” But, then again, that presumes that a more experienced attorney would not be willing to accept a lower salary. Why not try to get a valuable senior attorney at a low price?

e. Bottom line, Mitch: You’re probably right, at least partly. Try as I might, I can’t completely avoid the real possibility that, even when I hire, and use “3 – 5 years experience,” I don’t mean “about 30 years old.” I can tell you that is what I recently advertised, and ended up hiring a 10-year veteran who is about 40 years old. At least I am open to hiring attorneys of all ages. 

Hope this has been in some degree helpful. I must admit, such language as “3 – 5 years experience” has at the least some discriminatory overtones, and probably impact. Thanks for bringing it to my – and our readers’ – attention. We all have some biases in us; hopefully, now that we are aware of them, we’ll correct our language in “help wanted” ads, and in other contexts, as well. You have educated us.

Thanks, again, for writing in. 

          Best, Al Sklover   

To obtain a Model Complaint of Age Discrimination to HR or Management, for your adaptation to your facts and situation, just [click here.]

© 2011 Alan L. Sklover, All Rights Reserved.