Before I got involved in employment law, I was naive enough to believe that discrimination was largely a thing of the past.  I was flat wrong.  Even with all the hype, sex and race discrimination are still out there.  They are hidden better these days, but these types of discrimination are still there.

The most common type of discrimination, though, is not race or sex, but age.  As Alan Farnham reported on ABCNews in his article this week “Want Wrinkles With That?  Texas Roadhouse Sued for Age Discrimination,”  the EEOC percieves age discrimination as a huge problem arising from the recent recession.  And, we’re not talking about the 65 and older crowd here.  Age discrimination happens to 40 year olds, too, as was the case with Texas Roadhouse.  They want young chipper people working bar and acting as hostesses.    Plastic surgeons want young beautiful people working in their offices to make all the clients feel like they need surgery.  Setting that aside, let’s look at the less obvious.  Older people are less familiar with the new and inventive ways of doing business.  There is always new software, a new device, or a new something that causes businesses to unintentionally avoid older workers – simply because they may not be familiar with the latest and greatest.

Because it is easy to think you are not discrimnating by choosing the 25 year old over the 40 year old, you may not even be conscious of your decision.  Of course, you are thinking – if it isn’t intentional, how can I be liable?

Intent is a funny thing in the law.  Because a jury can’t crawl into your skull and see what you are thinking, they have to guess your intent from your actions.  If you pick the 25 year old over the identically qualified 40 year old and your office is already full of 25 year olds – a jury might think you are discriminating.   If the 40 year old is slightly better qualified but you pick the 25 year old because you connected better with that person in the interview – a jury might think discrimination.  Again, if you want a certain image for your company and the less stylish 40 year old isn’t part of that image – good luck winning in front of the 3 older people on your jury!

So, stop for a minute, consider whether you are unconsciously discriminating, and then think about what a jury might think if they looked at your decisions!