While some employers' job listings note a required minimum years of experience, others have taken to capping the desired experience range, asking, for example, for someone with three to five years' experience.

But are such caps a not-so-subtle way of dissuading older candidates form applying? In the same way that ruling out a candidate based on poor "culture fit" can be cover for bias, experience ranges can be a dog whistle for age discrimination.

Check your assumptions

Ask any recruiter why they don't want to hire a truly overqualified applicant and the answers will sound simple enough: fear that the candidate will leave as soon as something better (and higher paying) comes along; worry that they won't be engaged in the work; or a concern that they won't do well reporting to a manager with less experience.

All concerns that seem nondiscriminatory on their faces, but the problem is that they're based on assumptions. And because experience is often tied to age, those assumptions start to affect older workers disproportionately.

Of course, explicit age restrictions generally will violate the Age Discrimination in Employment Act (ADEA), Raymond L. Peeler, assistant legal counsel for coordination in the U.S. Equal Employment Opportunity Commission's office of legal counsel, told HR Dive via email. The are a few exceptions, but they mostly apply where a law has set a maximum age for a job, like that for airline pilots, he said.

But what about when employers focus not on age, but on experience? "Legally, when you say a candidate is overqualified, you’re admitting they are 'qualified;' they meet the criteria you’ve set for the position," notes Keisha-Ann Gray, partner at Proskauer Rose LLP.

While an applicant's extra experience may have nothing to do with age, employers need to have an objective reason why that experience is a problem, Gray said. It's not enough to speculate that they might be bored or jump ship; those are subjective criteria. Take age out of the equation, which you should as you would any other protected class, she suggested. Ask yourself: "What would be a bona fide business reason that person’s higher level of experience or expertise should exclude them?" If you can’t think of any, she said, you need to put your assumptions aside and rethink that candidate.

Have a conversation with the candidate, she suggested. Ask about their long-term career goals within and beyond the company. These are the same questions you should be asking every candidate, she noted, adding that if they give you the right answers, it may be a mistake to exclude them.

Peeler offered similar advice: Give the overqualified candidate an interview and find out why they applied, he said. Perhaps they're making a career change or view the business as an employer of choice — happy to start over in exchange for what they're seeking. Employers should be asking all applicants about career plans, he said. A younger, less qualified applicant may well view the job as a very temporary stop on their career path. "As a practical matter, employers who turn down 'overqualified' applicants run the risk of missing a lot of good talent."

And if you have bona fide reasons for not hiring someone who exceeds a cap, be ready to describe and defend them, Gray said. And no, "these are entry-level spots" isn't sufficient, she said.

Watch your language — and your attitude

In reconsidering experience ranges, it is important to review the rest of your job description's language, too. EEOC takes the position that job ads should not include language that deters older workers like "recent graduates," unless there is a bona fide exception, Peeler explained. But courts generally have disagreed, reasoning some people go to college later in life. Employers in those jurisdictions, however, still have to be careful not to make assumptions about applicants. "A 50 year old who graduated from college last year should receive the same consideration as her 22 year old classmate for a position advertised to 'recent college graduates,'" he said.

And depending on the workforce, a culture shift may need to follow, too. In fact, Gray said she believes we're ripe for a broader culture shift with regard to more seasoned workers. As a society, we often accept that when we hit milestones like age, our lives change, she said, but employers can't make those assumption.

For HR, this means working to close communication gaps between the generations. Often, those who can't relate to another group exclude them. "Older workers are often excluded from social activities," for example, Gray said. "It may not be a conscious exclusion, but many people don’t know how to socialize with someone older." In other cases, they’re treated with too much deference, and either end of that spectrum can leave someone feeling "othered," as though they don’t belong.

And when it comes to hiring, HR may need to push back against hiring managers who deem someone "overqualified," in the same way that "culture fit" doesn't cut it. 

"The way we foster inclusion of seasoned workers must be more meaningful and impactful," Gray said. "We need to start educating and training more about age discrimination," she said, adding that "it’s not someone else’s problem; one day, it will be all our problem."