Age should not be a barrier

Remember Y2K? Remember how we all cowered in terror, expecting that at midnight on 1 January 2000 our toasters would explode, our computers would die and planes would come crashing out of the sky.

Okay, so maybe we didn’t quite, but thousands of consultants made millions of pounds claiming that our lives would halt due to some unforeseen computer thing, which proved to be a damp squib.

On 1 October 2006 it became illegal in employment matters to discriminate against someone on the grounds of age. Being found to be in breach of this legislation could mean an award of unlimited damages.

Privately, though, many HR professionals thought it might just turn out to be another damp squib, another of the business world’s all too frequent panic attacks.

But the legislation has prompted some changes. Dates of birth have come off CVs and upper limits on PQE level in job adverts have largely disappeared.

In job briefs to recruiters some law firms aim for a watertight approach, removing the ‘years’ PQE’ entirely. Others have taken the cap off, such as two-plus years’, while a few still stick to the old ‘two to four years’ PQE’ definitions, usually adding some kind of caveat to indicate that, although these are their preferred levels, they will of course consider more senior candidates.

Whether this reflects reality on the ground is difficult to tell. Rome was not built – nor sacked – in a day.

There has been a definite uptake of more senior candidates of late, especially in ‘hot’ areas such as property and corporate, but experience with litigators, where demand is much lower, would suggest that bias against senior candidates remains, in UK firms at least.

In fact, there is a startling divide between UK and US firms on this matter: recently a partner over the age of 55 wanted to explore the market. While there was not a single bite from UK firms canvassed (the majority), the candidate got six interviews from US firms (and two offers).

The trouble for older candidates is that there are just so many reasons for a firm to say no other than age. Experience not quite right, for instance. Wrong fit with the team. Too many moves (how many is too many if you’re 55?). Wrong academics (not accounting for the fact that it was more difficult to get tip-top grades 20 years ago).

In a common law jurisdiction these things do take time to resolve. But things could still go awry. All it takes is one disgruntled partner forced to retire before they are ready, or a candidate continually knocked back for ‘structural’ reasons to launch legal action.

And while if you are, say, a 25 year-old black lawyer, you may think twice about making a race discrimination claim for fear of blotting your copybook for the rest of your career, if you are a 55-year-old lawyer you may think, ‘what do I have to lose?’. And, if you’re a litigator, you might even decide to do it yourself.

The chilling thing for firms that are busy paying lip service to age discrimination and finding ‘other reasons’ for not seeing older lawyers at the moment is that the organisation’s recruitment history will be examined from 1 October 2006 onwards. So the longer ingrained attitudes don’t change, the greater the potential explosion when the revolution comes.

But whether you think that this legislation is just another piece of annoying red tape or not, isn’t it in everyone’s best interests to be able to benefit from the wisdom of age? Would you rather be talking to someone with two years’ experience or 20?As ever, our counterparts across the pond may provide the answer. O’Melveny & Myers senior partner Warren Christopher is 82 in October. I dare you to tell him he’s too old.