[Federal Register: July 6, 2007 (Volume 72, Number 129)]
[Rules and Regulations]
[Page 36873-36875]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06jy07-9]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1625
RIN 3046-AA78
Coverage Under the Age Discrimination in Employment Act
AGENCY: Equal Employment Opportunity Commission.
ACTION: Final rule.
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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 (202) 663-4537 (voice) or (202)
663-7026 (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.
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\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.
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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
[[Page 36874]]
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.
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\3\ Cline, 540 U.S. at 600.
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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.
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\4\ In Cline, the employer eliminated retiree health benefits,
but grandfathered employees who were age 50 or older.
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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\
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\5\ Cline, 540 U.S. at 591.
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.
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\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).
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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 Sec. 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.
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\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).
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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.
0
For the reasons discussed in the preamble, the Equal Employment
Opportunity Commission amends 29 CFR chapter XIV part 1625 as follows:
[[Page 36875]]
PART 1625--AGE DISCRIMINATION IN EMPLOYMENT ACT
0
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
0
2. Revise Sec. 1625.2 to read as follows:
Sec. 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.
0
3. Revise Sec. 1625.4 to read as follows:
Sec. 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.
0
4. Revise the first paragraph of Sec. 1625.5 to read as follows:
Sec. 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:
* * * * *
[FR Doc. E7-13051 Filed 7-5-07; 8:45 am]
BILLING CODE 6570-01-P