E7-13051. Coverage Under the Age Discrimination in Employment Act

AGENCY:

Equal Employment Opportunity Commission.

ACTION:

Final rule.

SUMMARY:

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is publishing this final rule to amend its Age Discrimination in Employment Act (the “Act” or “ADEA”) regulations to conform them to the Supreme Court's holding in General Dynamics Land System, Inc. v. Cline, 540 U.S. 581 (2004), that the ADEA only prohibits discrimination based on relatively older age, not discrimination based on age generally. Thus, the final rule deletes language in EEOC's ADEA regulations that prohibited discrimination against relatively younger individuals. The new rule explains that the ADEA only prohibits employment discrimination based on old age and, therefore, does not prohibit employers from favoring relatively older individuals.

DATES:

Effective date July 6, 2007.

FOR FURTHER INFORMATION CONTACT:

Raymond Peeler, Senior Attorney Advisor, Office of Legal Counsel, at [phone] (voice) or [phone] (TTY) (These are not toll free numbers). This final rule also is available in the following formats: large print, braille, audio tape and electronic file on computer disk. Requests for this final rule in an alternative format should be made to the Publications Information Center at 1-800-669-3362.

SUPPLEMENTARY INFORMATION:

On August 11, 2006, the EEOC published a Notice of Proposed Rulemaking (“NPRM”) in the Federal Register to amend regulations that prohibited any age-based discrimination against individuals forty years old or older, regardless of whether the age-bias favored older or younger individuals.^[1] Relying on the Supreme Court's decision in General Dynamics Land System, Inc. v. Cline, 540 U.S. 581 (2004),^[2] the NPRM explained that the ADEA protects only relatively older individuals.

Overview of Public Comments

The Commission received nine public comments during the public comment period, which ended on October 10, 2006. Six commenters strongly supported the proposed rule: AARP, National Employment Lawyers Association (NELA), Equal Employment Advisory Counsel (EEAC), U.S. Chamber of Commerce, TOC Management Services, and the National Federation of Independent Business (NFIB). Two federal employee unions opposed the rule. The Conference Board, a “business research and membership non-profit organization” whose comment is a compilation of questions from its members, sought some clarifications that are discussed below.

Scope of the Regulation

One of the opposing commenters argued that the Supreme Court's ruling in Cline was already reflected in Section 1625.2(b) of the Commission's current regulations, which allows favorable treatment of older workers with respect to benefits. We believe that the Supreme Court addressed this comment through its detailed analysis concerning the purpose of the ADEA as protecting older workers and its characterization of the current regulations' prohibition of “reverse” age discrimination as “clearly wrong.” ^[3] Thus, the Commission concludes that it cannot conform its regulations to the Court's decision in Cline without amendment.

A Conference Board member's comment that “the change in language creates a slippery slope around creating new protections,” suggests a belief that the rule creates a new enforceable right for older individuals. The rule creates no such right. It simply provides that an employer does not violate the ADEA if it makes an age-based decision that favors older individuals.^[4] The Commission has added language to section 1625.2 to clarify this point.

The opposing comments and some comments from the Conference Board construe the NPRM to inappropriately encourage favoritism of older individuals. For example, the American Federation of Government Employees (AFGE) argued that the NPRM inappropriately deters the employment of younger individuals in the protected age group, and a Conference Board member expressed concern that certain positions will become “for matures only.” However, as the Cline Court noted:

The [legislative and administrative] record is devoid of any evidence that younger workers were suffering at the expense of their elders * * * Common experience is to the contrary * * * If Congress had been worrying about protecting the younger against the older, it would not likely have ignored everyone under 40. The youthful deficiencies of inexperience and unsteadiness invite stereotypical and discriminatory thinking about those a lot younger than 40, and prejudice suffered by a 40-year-old is not typically owing to youth, as 40-year-olds sadly tend to find out. The enemy of 40 is 30, not 50.^[5]

AFGE also asked EEOC to restrict the regulation's scope by explaining that it does not affect state laws prohibiting age discrimination against relatively younger persons. The same concern was reflected in a question from the Conference Board. The Commission agrees with this suggestion; the rule only interprets the ADEA, not state or local law. The ADEA permits states to provide protections in addition to those provided by federal law.^[6] Thus, the Commission has revised the final rule to clarify that it only interprets the ADEA, not state or local law.

Concerns With Specific Provisions

Some members of the Conference Board asked for additional guidance in Section 1625.4 regarding how employers may structure advertisements without violating the ADEA. AFGE also criticized this Section, suggesting that we only provide examples such as “experience a plus.” But AARP, whose comment also was adopted by NELA, praised the NPRM's “straightforward description of what is acceptable in posting employment advertisements.” The NFIB and EEAC also supported the advertisement language, believing it would aid their members' recruitment efforts. Inasmuch as the advertising provisions are expressly supported by many commenters and already include several examples that EEOC believes reflect the Court's interpretation of the ADEA, the EEOC concludes that further guidance in the text of the regulation is unnecessary. Further, providing a definitive list of legally acceptable advertising language could hamper employers' unique efforts to fill their workforce needs.

AFGE also commented that the revised § 1625.5 improperly encourages employers to collect an applicant's age or date of birth. The Commission does not agree that this Section encourages employers to collect such information. To the contrary, it warns employers that the EEOC will closely scrutinize the collection of age-identifying information to ensure that it is collected and used only for lawful purposes. AARP and NELA (adopting AARP's comment), both worker rights groups, explicitly approved of how this provision “emphasizes the role of the EEOC in monitoring employment applications.”

Revisions to the NPRM

The final rule adopts the NPRM but adds a sentence to clarify that it neither creates an enforceable right for older workers nor affects state or local prohibitions against age-based favoritism.

Regulatory Planning and Review

This final rule is considered to be a “significant regulatory action” pursuant to section 3(f)(4) of Executive Order 12866, 58 FR 51735 (Sept. 30, 1993), in that it arises out of the Commission's legal mandate to enforce the ADEA. Therefore, it was circulated to the Office of Management and Budget for review. Nonetheless, the Commission has determined that this rule will not have an annual effect on the economy of $100 million or more, and will not adversely affect the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety. To the contrary, this final rule increases the flexibility of employers to take previously forbidden age-based actions that favor older workers.

Although the final rule applies to all employers with at least 20 employees,^[7] it will not have a significant impact on small business entities under the Regulatory Flexibility Act, because it imposes no economic or reporting burdens. For reasons already identified, the Commission also finds that this final rule requires no additional scrutiny under either the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., concerning the collection of information, or the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501, et seq., concerning the burden imposed on state, local, or tribal governments.

List of Subjects for 29 CFR Part 1625

• Advertising
• Aged
• Employee benefit plans
• Equal employment opportunity
• Retirement

Dated: June 29, 2007.

For the Commission.

Naomi C. Earp,

Chair.

For the reasons discussed in the preamble, the Equal Employment Opportunity Commission amends 29 CFR chapter XIV part 1625 as follows:

PART 1625—AGE DISCRIMINATION IN EMPLOYMENT ACT

1. Revise the authority citation for part 1625 to read as follows:

Authority: 29 U.S.C. 621-634; 5 U.S.C. 301; sec. 2, Reorg. Plan No. 1 of 1978, 43 FR 19807; E.O. 12067, 43 FR 28967.

Subpart A—Interpretations

2. Revise § 1625.2 to read as follows:

§ 1625.2

Discrimination prohibited by the Act.

It is unlawful for an employer to discriminate against an individual in any aspect of employment because that individual is 40 years old or older, unless one of the statutory exceptions applies. Favoring an older individual over a younger individual because of age is not unlawful discrimination under the ADEA, even if the younger individual is at least 40 years old. However, the ADEA does not require employers to prefer older individuals and does not affect applicable state, municipal, or local laws that prohibit such preferences.

3. Revise § 1625.4 to read as follows:

§ 1625.4

Help wanted notices or advertisements.

(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.

4. Revise the first paragraph of § 1625.5 to read as follows:

§ 1625.5

Employment applications.

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:

* * * * *

Footnotes

1.  EEOC Notice of Proposed Rulemaking, 71 FR 46177, Aug. 11, 2006.

2.  In Cline, a group of employees between the ages of forty and forty-nine sued their employer for age discrimination when it eliminated its future obligation to pay retiree health benefits for any employee then under fifty years old. The Supreme Court rejected their claim, finding that the ADEA's prohibition against discrimination “because of age” only prevents discrimination that favors younger workers, not actions that place older workers in a more favorable position. The Court's rationale is described in detail in the NPRM. See 71 FR at 46178.

3.  Cline, 540 U.S. at 600.

4.  In Cline, the employer eliminated retiree health benefits, but grandfathered employees who were age 50 or older.

5.  Cline, 540 U.S. at 591.

6.  “Nothing in this [statute] shall affect the jurisdiction of any agency of any state performing like functions with regard to discriminatory employment practices on account of age except that upon commencement of action under [the ADEA] such action shall supersede any state action.” 29 U.S.C. 633(a).

7.  See 29 U.S.C. 630(b). According to Census Bureau Information, approximately 1,976,216 establishments employed 20 or more employees in 2000, see Census Bureau, U.S. Department of Commerce, Statistics of U.S. Businesses (2000).