I Believe I'm a Victim of Ageism. What Recourse Do I Have?

Carolyn Buppert, MSN, JD

Disclosures

October 08, 2018

To submit a legal/professional question for future consideration, write to the editor at lstokowski@medscape.net (include "Ask the Expert" in the subject line).

Question

A 52-year-old registered nurse (RN) fears that the reason a hospital declines to hire her is ageism. Here's her story:

I just passed the board examination after graduating with honors from a very competitive RN program. I have been working for the same hospital corporation for 5 years as a unit secretary, with excellent evaluations, with nothing negative in my record. I know the hospital's computer charting system, and department colleagues have been pleased with my work and offered to give me references. I have applied at four hospitals owned by this corporation, have had two interviews for the new graduate program, and have been turned down for both. I've applied for several other RN positions, but the recruiter has automatically denied them as "not under consideration," so the hiring managers never saw them. I finally got one other interview but was not hired for the position.
I will have to apply at non-affiliated area hospitals, but if I don't stay with this corporation I will have to pay back the tuition reimbursement the hospital gave me to go to school for my RN.

I believe the problem is ageism because they hired some of my much younger classmates who have had no medical experience at all. I also know of at least four RNs over age 40 who were turned down for the same new graduate program. I've never had a problem with interviews before. What can I do?
Response from Expert Carolyn Buppert, MSN, JD
Healthcare Attorney

I can't think of a good business reason why a hospital would hesitate to hire nurses who are over age 50. There are pluses and minuses when employing an individual of any age. I haven't found any data that show that hiring an older nurse is unwise. Neither do I know of any conventional wisdom about older nurses versus younger nurses. Furthermore, it makes no sense for an organization to cover your tuition to become an RN if the organization didn't want you to work there after graduation.

Nevertheless, any hiring individual may be disposed toward or against older applicants, and if there is a pattern at your organization of declining to hire those who are qualified and over age 40 or 50, then it should be brought to light and it should stop.

Before assuming that you are being passed over because of your age, you'll want to be sure that there isn't anything else that is standing in your way. Here are some things to consider and to do:

  1. Ask to review your personnel file. Is there anything in it that might cause an individual in a position to hire to feel negatively toward you?

  2. Request an appointment with one of the human resources (HR) specialists and ask that person for a frank assessment of your interviewing skills and your applicant package. The HR professional may have access to notes from those who have interviewed you. Specific questions you might ask include: How does my resume strike you? Were there any comments from those who interviewed me about my attitude, professionalism, appearance, experience, or manner of presenting myself? The HR person may have some information useful to you for future interviews. You might also ask one or more of the individuals who interviewed you if they are willing to provide you with feedback. You may have said something that wasn't wrong or inappropriate but which indicated that you weren't a good fit for the position. For example, you may have said you wanted to work days, and the head nurse wanted someone who happily will work night shifts. If everyone says everything was good, then you know not to change your resume or interview style.

  3. Have you filed any complaints during your employment? How about lawsuits? Have you made any worker's compensation claims? While you have a right to file complaints, lawsuits, or worker's compensation claims, and your organization should not hold that against you, if an individual who is hiring thinks you are litigious, he or she may not offer you a job.

  4. You might reevaluate your choice of references. You might ask the HR person whether any of your references didn't give you a high rating or was perpetually unreachable.

  5. Some people in the position of hiring conduct their own research on candidates by tracking down individuals who have worked with the applicant but aren't on the reference list. Think about who in the organization may be giving you a thumbs-down or even a lackluster evaluation. If someone comes to mind, is a repair of relationship feasible? If not, you might be upfront in future interviews and say that there is a person in the organization who you think will not give you a good review, and offer to give your side of that story.

  6. Review your social media presence if you have one. Are there any postings or photos that are controversial or unprofessional?

If you have gone through the process described above and you don't come up with anything that is standing in your way, and you believe that it is your age that is turning off those doing the hiring, then consider filing a complaint with the Equal Employment Opportunity Commission (EEOC).

I don't find any failure-to-hire EEOC cases involving hospitals and nurses, but I did find a successful case brought by nurses who claimed that they were terminated because of their age. In that case, a hospital fired 29 nurses over age 40, or forced them to resign, and a hospital manager was heard saying they wanted younger and "fresher" nurses.[1]

Another route is a civil lawsuit against your employer for "failure to hire." Or, if you did exercise your right to make a complaint in the past, and you think the organization is retaliating against you for that, you may have a civil remedy. Filing a civil lawsuit would be a last resort, in my opinion. It probably doesn't feel right to sue your current employer, who paid for your education, and you don't want to spend your time and money on litigation which could go on for years and may ultimately be unsuccessful. You would need to prove that those in a position to hire made ageist statements, and/or that your qualifications were better than those of the individuals they hired. If the hospital has hired even one older nurse, the hospital will say that there is no pattern of hiring only younger nurses. Consider consulting with an attorney who is experienced in employment law and who is admitted to practice in your state, to get a sense of whether you have a viable case.

Regarding your obligation to reimburse the hospital for your tuition if you don't end up working for the organization, read the agreement that you signed with the organization. Often, there is a provision that releases the employee from repayment obligations if the employee cannot get a job in the organization.

Comments

3090D553-9492-4563-8681-AD288FA52ACE
Comments on Medscape are moderated and should be professional in tone and on topic. You must declare any conflicts of interest related to your comments and responses. Please see our Commenting Guide for further information. We reserve the right to remove posts at our sole discretion.
Post as:

processing....