The Chicken or the Egg?

The Chicken or the Egg?

One of the most frustrating things right now for job seekers is that employers are screaming they cannot find enough employees.  Yet, thousands of well-qualified people remain unable to find a job. 


The reasons are many, including biases. For example, age discrimination is real.  During the pandemic, it has gotten worse as many older employees lost jobs, and they have found it very difficult to replace the lost jobs. 

Another stubborn (and less publicized) bias is the bias against the unemployed. 

One common saying is that it is always easier to find a new job while you have a job.  Sadly, that is true.  Many companies screen out people who have been unemployed for six months or more for unknown reasons.  There is no good reason to screen out the entire unemployed out of work for six months just automatically.  That reflects all kinds of bias.  For example, it screens out people who have taken time out of the workforce to raise a family. It screens out people who may need to take time off for a serious health condition or care for family members with a serious health condition.  As those people try to go back to work, they hit the brick wall of bias against the unemployed.

A new area getting a lot of attention right now is artificial intelligence in the hiring process.  Most job search boards and many large companies use artificial intelligence and algorithms to help screen the job applications they receive.

While AI is undoubtedly a helpful tool for companies to use in screening applicants, it can create many problems.  Applicants have to figure out the “magic” word that will cause the AI to catch their resume or job application.  If an applicant does not use just the right word to trigger a hit, a human will never see that application.

Because the AI is programmed to look for certain experience levels, it does not catch the strong applicants out there who do not have the perfect match in terms of experience sought but could still be excellent employees if given a chance and a bit of training. Intangible skills don’t necessarily translate well to AI.

Unfortunately, research shows that bias can permeate the algorithms used by those AI tools.  This may cause discrimination against all kinds of protected groups.  For example, years ago, Amazon had to scrap a recruiting tool it had designed to screen resumes for top talent.  When it tried to use the tool, it found the AI screened out qualified women because the algorithm was based on ten years of patterns in resumes submitted to the company.  Because most of those resumes came from men (due to the pattern of male dominance in the tech industry), the system did not rate candidates in a gender-neutral way and had to be tossed.

A company can run tests on the algorithms it uses in job screening to search for bias, but many companies do not do that.  However, it sounds like it would be smart for companies to do so.

One of the next waves of litigation will be the challenge of such biased tools in hiring.  Smart companies will make sure their AI can—and has—passed the tests against bias before that wave hits.

Though AI can save time, it’s clear it can never replace the human touch.  Humans are so much more than words on a piece of paper screened electronically.  Sometimes it takes a little time and effort—and luck—to find the perfect person for the role.  I’d like to see all candidates get a fair chance at jobs with eliminating bias—particularly the bias against the unemployed.  What a great world that would be.

Older Workers: What Age Discrimination Looks Like

Older Workers: What Age Discrimination Looks Like

As if losing a job in the middle of a pandemic was not hard enough, older workers face an additional fear: will I ever find a new job? Which companies are looking to hire older employees?

Millions of Americans have lost jobs. Six months into the pandemic, some of those workers have been able to go back to work. They have either been recalled from furlough or been lucky enough to find new jobs. However, the pandemic (and ensuing recession) have wiped out thousands of those jobs. Those jobs simply are not there for workers to return to.

Older workers know that age discrimination exists. They are now competing for the same jobs as many younger workers. Do they even have a chance? Many fear they will never find a new job.

Age discrimination is illegal. However, proving age discrimination occurred is no easy feat. How can you prove it?

First, both state and federal laws protect you from age discrimination. However, your company needs to be a certain size before these laws apply. The federal law, the Age Discrimination in Employment Act, does not apply to a company unless it has at least 20 or more employees. The Texas law barring age discrimination kicks in when a company has 15 employees.

To prove age discrimination, you have to show: (1) you area qualified employee over age 40, (2) you suffered an “adverse employment action” such as getting fired or not hired, and (3) you were either replaced by someone younger than you or there is other evidence sufficient to create an inference of age discrimination.

Once you show your prima facie case, the company must provide a “non-discriminatory” reason that explains why you got fired or did not get hired. The burden then shifts to you to prove that the Company’s reason is not the real reason. Instead, it is just a pretext for age discrimination.

Some of the best evidence to help support an age discrimination claim comes from informal comments that are ageist in nature. Some of these comments are very direct. Others are more subtle. Examples of the things that can be ageist are: “OMG, you just turned 60! I cannot believe you are so old. We are working with a dinosaur!” “You are such an old geezer.” “Okay, boomer.” “Welcome to 2020.” “We need some racehorses here, not plow horses.” “Is it time for your nap?” Some other helpful evidence is when your employer keeps asking you how much longer you intend to keep working or whether you plan to retire soon.

One of the biggest concerns for older workers seeking jobs right now is whether companies will be afraid to hire them, fearing older employees might be more susceptible to severe effects if they get COVID-19. The EEOC says this “benevolent concern” is an illegal form of age discrimination. However, will that stop employees from silently preferring the younger job applicants? Likely not. Employees should watch for any evidence that the company is “concerned” about their health and either laying them off out of that concern or not hiring them out of that concern.

If you believe you may have been discriminated against because of your age, we can help.