EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADEA- Pre-employment inquiries

April 11, 2005

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This responds to your inquiry about whether employers can lawfully ask applicants what year they graduated from high school and subsequently discriminate against applicants based on their age. As you know, the Equal Employment Opportunity Commission (EEOC) enforces, among other laws, the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., which forbids employers from discriminating against persons age 40 and over on the basis of their age. The ADEA's protections apply to both employees and job applicants. This means that it is unlawful to discriminate against applicants in the hiring process because of their age.

The ADEA does not specifically prohibit an employer from asking an applicant's age or date of birth. See 29 C.F.R § 1625.5. However, because an employer's request for such information might discriminate against workers based on age, the Commission closely scrutinizes application forms which request such information to ensure that the request is not for an unlawful purpose. See 29 C.F.R § 1625.5. In other words, employers must not use such information to discriminate against older workers.

Because an employer's request for an applicant's age might deter older workers from applying for positions, employers should assure employees during the application process that such information will not be used for discriminatory purposes. See 29 C.F.R § 1625.5. For example, application forms could state that the employer does not discriminate on the basis of age.

For additional information on the EEOC and the laws that we enforce, please visit our website at www.eeoc.gov. We hope that this information is helpful to you. Please note, however, that this letter is an informal discussion of the issues you raised and does not constitute an official opinion of the Commission.

This page was last modified on April 27, 2007.