Employment Law Brief: A Victory For Older Workers? EEOC Revises Age Bias Regulations - What Employers Need to Know

July 2007

The Age Discrimination in Employment Act (ADEA), makes it "unlawful for an employer to discriminate against any individual (age 40 or older), with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual's age." Until recently, the statute has been interpreted by some to permit "reverse discrimination" claims by employees younger than 40.

As a means of bringing clarity to this debate, on July 6, 2007, the U.S. Equal Employment Opportunity Commission (EEOC), revised its age discrimination regulations by instructing that the ADEA does not prohibit employers from favoring an older employee over a younger one, even when both are protected by the Act.1 Now, under the revised rules, a reverse age discrimination claim is not viable in the context of the ADEA.2

Other Practical Tips Related to the ADEA

Without question, the use of standard written or electronic job applications in the process of hiring candidates for employment is widespread. It is also a safe bet that many (if not most), job applications request information regarding an applicants age or date of birth. Accepting these facts as true, employers should be informed that the EEOC disfavors this practice. In its age discrimination regulations, the EEOC advises that while "information such as Date of Birth or age on an employment application form is not, in itself, a violation of the Act," the EEOC's position is that requesting such information "may tend to deter older applicants or otherwise indicate discrimination against older individuals." Accordingly, the EEOC will "closely scrutinize" requests for such information to assure that the request is for a permissible purpose." Notably, in its regulations, the EEOC strongly encourages the inclusion of specific disclaimer language in each employment application wherein age-related information is sought.

Even job advertisements have not escaped the scrutiny of the EEOC. One aspect of the ADEA regulation cautions that, "[h]elp wanted notices or advertisements may not contain terms and phrases that limit or deter the employment of older individuals." As such, job notices or advertisements that feature phrases such as "age 25 to 35, young, college student, recent college graduate, boy, girl, or others of a similar nature violate the Act," unless an exception applies. In contrast, employers are free to "post help wanted notices or advertisements expressing a preference for older individuals with terms such as over age 60, retirees, or supplement your pension."

Conclusion

The EEOC's ADEA regulations present a number of potential pitfalls for the less than wary employer. For compliance questions regarding the ADEA, questions regarding the employment hiring process and job applications, sample employment application forms, information regarding the EEOC-approved disclaimer that should be included on all employment forms, as well as other human resource issues and employment law matters, please contact Ober|Kaler's Employment Group.

Notes

1The EEOC's effort was designed to keep the agency in line with a recent Supreme Court decision. General Dynamics Land Systems, Inc. v. Cline.
2 Notwithstanding, under the amended ADEA rules, an employer is not required to favor older workers.