We know older workers face a type of scrutiny many younger colleagues don’t have to deal with. That is why, under both state and federal law, it is illegal to discriminate against an employee over the age of 40.

But it’s not just employed workers that face discrimination. In some cases, employers begin to weed out older individuals as soon as they apply for a position.

Age discrimination can start immediately

An upcoming paper from an economist at the University of California, Irvine, offers some new insight into how employers might treat age during the hiring process. As explained in a Forbes piece, the researcher found discrimination often begins as soon as the hiring company becomes aware of an applicant’s age.

For example, when older workers applied online and did not have to divulge their age, they were selected for the next round of job interviews just as often – if not more – than younger workers. Once those candidates came for an in-person interview, a scenario in which their age is readily apparent, those older workers took a hit. Their job offer rate was 46% lower than that of younger workers, despite often having better qualifications and assessments.

The paper’s author noted similar findings when applicants had to provide a paper application in-person.

Is it legal to ask for an applicant’s age?

With the paper’s concerning findings, you might be wondering whether an employer is even allowed to ask for an applicant’s age or date of birth. This reveals a bit of a gray area in the law.

There is no law at the state or federal level that explicitly bars an employer from asking applicants to provide their age or birth date, according to the Texas Workforce Commission. However, if an employer does ask, it might suggest the company is engaging in discriminatory behavior.

If an applicant brings a discrimination complaint to the commission or files a lawsuit, an age-related question during pre-employment might be viewed as evidence. The key is determining whether the employer asked about an applicant’s age for a lawful purpose (such as requiring someone 21 or older to serve alcohol) or with some intent to discriminate.

This is a nuanced area of the law, and discrimination is not always overt. Whether it comes during the application process or after being hired, it may be subtle and go unnoticed at first. But we know it happens, even to the most accomplished, talented workers among us.