It's a slippery slope akin to "If you're not guilty, you have no reason not to submit to a search". Once you open up the door to allowing businesses to ask questions they shouldn't (and thereby making decisions based upon that data), there's no longer any protection.
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Yup. A related story. A company I was working at laid off and older guy and retained a younger shorter tenured guy. There were reasons other than age for them to do what they did but nothing documented. The older guy went to an age discrimination government agency, not sure which one. As I heard it third hand, the agency person asked the company "Is the older gentleman as qualified to do this job as the younger one and has he been with your company longer?"
Company in question" Yes".
Agency person: "Has the older person had any history of incompetence or misbehavior?"
Company: "No"
Agency Person: "Pay the man".
There is always a way to explain why an older person was laid off for other reasons besides age discrimination whether it is true or not. I am aware of a guy who was an expert at a certain type of Army test set that was laid off due to his age (60+) rather than his ability. He was, in fact, the only person who truly understood the design and function of the product. Eventually, the company lost some very lucrative business because there was nobody left to competently manage the program. Fools!
Where my wife works a man around 60 was fired about 2 years ago. There where many good reasons for it, but there was no documentation for any of it. Later he sued then for age discrimination and won. I think he was awarded something like $300K plus had to pay his legal fees on top of it. There were times that he wasn't at work that he claimed he was (time wrote down due to nature of work done) and repeatedly late with no reason and so forth. Management was aware of these things but failed to properly document them over the months they occurred. So he claimed age was the reason for being terminated. Not sure what facts came out in court over it, but apparently wasn't any proof other than saying he did these things. He was close to retirement age, and the order was he to be paid for all the back pay he would have received had he been working still, plus a healthy sum on top of that.
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I would answer it like all their questions, as honest as possible. I wouldn't mention it being illegal since that really wouldn't serve any purpose. I am in the protected age category of over 40. Many people error thinking all ages are protected; they aren't.
http://www.eeoc.gov/laws/types/age.cfm