EEOC Issues Proposed Regulation Implementing US Supreme Court Decision Regarding Older Workers

September 20, 2006

In August 2006, the Equal Employment Opportunity Commission issued proposed amendments to revise and clarify its current regulations that describe the Age Discrimination in Employment Act as prohibiting any age-based favoritism in regard to employees age 40 and over. The EEOC issued these proposed amendments in response to the United States Supreme Court's decision in General Dynamics Land Systems, Inc. v. Cline, No. 02-1080; 540 U.S. 581 (2004).  (Read about the 2004 decision here.)  In Cline, the Supreme Court resolved a conflict among the federal appeals courts about the concept dubbed "reverse age discrimination" and held that the ADEA does not shield from discriminatory action individuals within the protected age category who are given less preferable treatment than similarly situated older individuals. The Supreme Court specifically found the ADEA was not intended to protect younger employees (even if age 40 or over) from being passed over for more preferable treatment accorded to relatively older employees.

Specifically, the EEOC proposes to amend 29 CFR 1625.2, entitled "Discrimination prohibited by the Act, to provide that "[f]avoring an older individual over a younger individual because of age is not unlawful discrimination under the Act, even if the younger individual is at least 40 years old."  The proposed amendments also seek to clarify issues pertaining to help wanted advertisements and requesting applicants' dates of birth on employment applications. 

In regard to help wanted notices and advertisements, the proposed amendments to 29 CFR 1625.4, provide as follows:

(a) "Help wanted notices or advertisements may not contain terms and phrases that limit or deter the employment of older individuals. Notices or advertisements that contain terms such as age 25 to 35, young, college student, recent college graduate, boy, girl, or others of a similar nature violate the Act unless one of the statutory exceptions applies. Employers may post help wanted notices or advertisements expressing a preference for older individuals with terms such as over age 60, retirees, or supplement your pension.

(b) Help wanted notices or advertisements that ask applicants to disclose or state their age do not, in themselves, violate the Act. But because asking applicants to state their age may tend to deter older individuals from applying, or otherwise indicate discrimination against older individuals, employment notices or advertisements that include such requests will be closely scrutinized to assure that the requests were made for a lawful purpose.

In regard to employment applications, the proposed amendments to 19 CFR 1625.5 provide as follows:

A request on the part of an employer for information such as Date of Birth or age on an employment application form is not, in itself, a violation of the Act. But because the request that an applicant state his age may tend to deter older applicants or otherwise indicate discrimination against older individuals, employment application forms that request such information will be closely scrutinized to assure that the request is for a permissible purpose and not for purposes proscribed by the Act. That the purpose is not one proscribed by the statute should be made known to the applicant by a reference on the application form to the statutory prohibition in language to the following effect: …

The proposed amendments were printed in the Federal Register and are open for public comment until October 10, 2006.

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