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DISABILITY DISCRIMINATION — 7/17/07

EEOC updates ADEA regulations to conform to Supreme Court’s ruling in Cline

The US Equal Employment Opportunity Commission has published a final rule amending its Age Discrimination in Employment Act of 1967 regulations to conform to the Supreme Court's holding in General Dynamics Land System, Inc v Cline (84 EPD ¶41,592). In that case, the Court held that the ADEA only prohibits discrimination based on relatively older age, not discrimination based on age generally. Accordingly, language in the EEOC’s ADEA regulations that prohibited discrimination against relatively younger individuals has been deleted in the final rule, with the rule instructing that the ADEA only prohibits employment discrimination based on old age and, thus, does not prohibit employers from favoring relatively older individuals. The rule is effective July 6, 2007.

On August 11, 2006, the EEOC published a notice of proposed rulemaking in the Federal Register (71 FR 46177) 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. Relying on the Supreme Court’s Cline decision, the notice of proposed rulemaking explained that the ADEA protects only relatively older individuals. The EEOC received nine public comments during the comment period, which ended on October 10, 2006. Six commenters strongly supported the proposed rule, while two federal employee unions opposed it.

The Conference Board, a 'business research and membership non-profit organization,' submitted a comment that 'the change in language creates a slippery slope around creating new protections,' which suggested that the proposed rule would create a new enforceable right for older individuals. The EEOC clarified that the "rule create[d] no such right," but rather, "simply provides that an employer does not violate the ADEA if it makes an age-based decision that favors older individuals." Language was added to section 1625.2 of the regulation to clarify this point.

Some comments in opposition to the proposed rule construed it to inappropriately encourage favoritism of older individuals. In response, the EEOC pointed to an observation made by the Cline Court:

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.

The EEOC agreed with comments suggesting that the proposed rule's scope be restricted so that state laws would not be affected. The rule only interprets the ADEA, not state or local law. The ADEA allows states to provide protections in addition to those provided under federal law. Therefore, the EEOC revised the final rule to clarify that it only interprets the ADEA, not state or local law.

Requests from some commenters for additional guidance on section 1625.4, which concerns how employers may structure advertisements without violating the ADEA, were rejected by the EEOC. Since the advertising provisions of the proposed rule were expressly supported by many commenters and already included several examples believed to be reflective of the Supreme Court’s interpretation of the ADEA, the EEOC determined that further guidance in the text of the regulation was unnecessary.

"With the graying of the American workforce, the ADEA has become more relevant than ever to both employers and employees," said EEOC Chair Naomi C. Earp. "These revisions harmonize the Commission’s age discrimination regulations with the Supreme Court’s ruling in Cline, which clarified the law on this question. The decision, along with the revised regulations, will aid the EEOC in its enforcement efforts."

The full text of the EEOC’s final rule, including the updated ADEA regulations are located in the July 6, 2007 Federal Register (72 FR 36873) notice at: Website.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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