11 August 2006
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[Federal Register: August 11, 2006 (Volume 71, Number 155)]
[Proposed Rules]
[Page 46177-46180]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au06-27]
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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: Notice of proposed rulemaking.
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SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or
``Commission'') proposes to amend its regulations concerning the Age
Discrimination in Employment Act (the ``Act'' or ``ADEA'') to reflect a
Supreme Court decision interpreting the Act as permitting employers to
favor older individuals because of age. This amendment will revise and
clarify EEOC regulations that currently describe the ADEA as
prohibiting such age-based favoritism.
DATES: Comments must be received on or before October 10, 2006. The
Commission will consider any comments received on or before the closing
date and thereafter adopt final regulations. Comments received after
the closing date will be considered to the extent practicable.
ADDRESSES: You may submit written comments by mail to Stephen
Llewellyn, Acting Executive Officer, Executive Secretariat, Equal
Employment Opportunity Commission, 1801 ``L'' Street, NW., Washington,
DC 20507. As a convenience to commentators, the Executive Secretariat
will accept comments transmitted by facsimile (``FAX'') machine to
(202) 663-4114. (There is no toll free FAX number). Only comments of
six or fewer pages will be accepted via FAX transmittal, in order to
assure access to the equipment. Receipt of FAX transmittals will not be
acknowledged, except that the sender may request confirmation of
receipt by calling the Executive Secretariat staff at (202) 663-4078
(voice) or (202) 663-4077 (TTY). (These are not toll free numbers).
Copies of the comments submitted by the public will be available for
inspection in the EEOC Library, FOIA Reading Room, by advanced
appointment only, from 9 a.m. to 5 p.m., Monday through Friday except
legal holidays, from October 10, 2006 until the Commission publishes
the rule in final form. To schedule an appointment to inspect the
comments, contact the EEOC Library by calling (202) 663-4630 (voice),
(202) 663-4641 (TDD) (These are not toll free numbers).
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 notice also is
available in the following formats: Large print, braille, audio tape
and electronic file on computer disk. Requests for this notice in an
alternative format should be made to the Publications Information
Center at 1-800-669-3362.
SUPPLEMENTARY INFORMATION: The ADEA states that employers may not
discriminate against individuals who are age forty or older ``because
of such individual's age,'' but does not specify the meaning of the
term ``age.'' 29 U.S.C. 623(a)(1). When the Supreme Court addressed its
meaning in General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581,
586 (2004), it noted that the term is ambiguous because it is commonly
used in two different ways: to neutrally refer to the length of
[[Page 46178]]
someone's life, i.e., chronological age, or to refer to old age. If the
term ``age'' in section 623(a)(1) of the Act were a neutral reference
to chronological age, then it would be unlawful under the Act for an
employer \1\ to favor older individuals over younger persons based on
age, so long as all were at least forty years old. If, however, ``age''
is defined as old age, then such preferential treatment does not
violate the Act.
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\1\ The prohibitions described in this notice of proposed
rulemaking apply to employment agencies and labor unions as well as
employers, see 29 CFR 1625.1. However, for purposes of efficiency,
the Commission will generically refer to all three with the term
``employers.''
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EEOC Interpretation of ``Age''
Until the Cline decision, the Commission had generally construed
the term ``age'' in section 623(a) of the Act to mean chronological
age.\2\ This interpretation was based, at least in part, on a statement
made during a colloquy on the Senate floor by Senator Yarborough, one
of the Act's sponsors. He explained:
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\2\ Brief of Amicus Curiae Equal Employment Opportunity
Commission at 26, General Dynamics Land Systems, Inc. v. Cline, 540
U.S. 581 (2004) (No. 02-1080). The Department of Labor, which
originally held enforcement authority over the Act, interpreted
section 623(a) in the same manner, 33 FR 9172 (June 21, 1968). The
Commission assumed authority over the Act on July 1, 1979, pursuant
to Reorganization Plan No. 1, 43 FR 19807 (May 9, 1978). Upon
obtaining this authority, the Commission reviewed the Department of
Labor's interpretations of the Act, 44 FR 37974 (June 29, 1979). The
Commission made no substantive change to the Department of Labor's
regulations regarding section 623(a)'s reference to ``age,'' see 44
FR 68858 (Nov. 30, 1979).
It was not the intent of the sponsors of this legislation * * *
to permit discrimination in employment on account of age, whether
discrimination might be attempted between a man 38 and one 52 years
of age, or between one 42 and one 52 years of age. If two men
applied for employment under the terms of this law, and one was 42
and one was 52, * * * [the] employer * * * could not turn either one
down on the basis of the age factor. * * * The law prohibits age
being a factor in the decision to hire, as to one age over the
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other, whichever way his decision went.
113 Cong. Rec. 31,255 (1967). Thus, the Commission's current
regulations prohibit any age-based preference between persons age forty
or over, regardless of whether the treatment favors older or younger
persons. 29 CFR 1625.2. A limited exception permits employers to
provide additional benefits to older workers to ``counteract problems
related to age discrimination.'' 29 CFR 1625.2(b). Another provision
prohibits employment advertising that expresses a preference for older
applicants at the expense of younger applicants who also were covered
by the Act, and vice versa. 29 CFR 1625.4. Similarly, the regulations
inform employers that requests for job applicants to disclose their age
``may deter older applicants or otherwise indicate discrimination based
on age.'' 29 CFR 1625.5
Supreme Court Rejects EEOC Interpretation
In Cline, the Supreme Court rejected claims that favoritism toward
older workers violated the ADEA.\3\ It concluded that such claims were
outside the scope of the Act, because Congress only intended ``to
protect a relatively old worker from discrimination that works to the
advantage of the relatively young.'' Cline, 540 U.S. at 591. Noting
that the ``reference to `age' '' in section 623(a) was ambiguous and
``could be read to look two ways,'' the Court based its conclusion on
the Act's coverage of only those age forty and above, the ``social
history'' of the term ``age discrimination,'' the Act's stated
purposes, and the legislative record as a whole. Cline, 540 U.S. at
586.
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\3\ The plaintiffs, a group of employees between the ages of
forty and fifty, challenged their employer's decision to eliminate
its future obligation to pay retiree health benefits to any employee
then under fifty years old, while preserving future entitlement to
such benefits for employees aged fifty or older, Cline, 540 U.S. at
584-5. Some courts refer to such claims as ``reverse age
discrimination claims,'' see, e.g., id. at 585 (noting that the
district court referred to the plaintiff's ADEA claim as ``one of
`reverse age discrimination' '').
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The Court deemed it significant that Congress decided to cover only
those age forty and above, observing that:
[i]f 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.
Id. at 591. Similarly, as a matter of social history, the Court found
that the record surrounding the Act contained no evidence that younger
workers were suffering while their elders were favored. Noting that
America is often seen as a ``youth culture'' in which younger is
better, the Cline majority explained, ``talk about discrimination
because of age is naturally understood to refer to discrimination
against the older.'' Id. at 591.
The Court also concluded that the stated purposes of the Act
reflect Congress' intent to protect the relatively older from
discrimination favoring the relatively younger.\4\ The Court noted that
the only phrase that does not directly refer to protecting older
employees--prohibiting ``arbitrary age discrimination''--actually is a
reference ``to age caps that exclude older applicants, necessarily to
the advantage of younger ones.'' Cline, 540 U.S. at 590.
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\4\ Cline, 540 U.S. at 589-90. ``It is therefore the purpose of
this [Act] to promote employment of older persons based on their
ability rather than age; to prohibit arbitrary age discrimination in
employment; [and] to help employers and workers find ways of meeting
problems arising from the impact of age on employment.'' 29 U.S.C.
621(b).
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Finally, the Court found that the legislative history as a whole
shows intent to protect the relatively older and not the relatively
younger. It noted that the Act was drafted, at least in part, in
response to a report issued by the Secretary of Labor concerning high
unemployment rates among older workers (``Wirtz Report'').\5\ The Wirtz
Report, the Court explained, ``was devoid of any indication that the
Secretary had noticed unfair advantages accruing to older employees at
the expense of their juniors.'' Cline, 540 U.S. at 587. Further, the
Court noted that ``[t]he record [from Congressional hearings concerning
the Wirtz Report] * * * reflects the common facts that an individual's
chances to find and keep a job get worse over time; as between any two
people, the younger is in the stronger position[.]'' Cline, 540 U.S. at
589.
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\5\ See Cline, 540 U.S. at 589 (noting that the introductory
provisions of the ADEA mirrored the statement of purpose in the
Department of Labor's report). Although Title VII of the Civil
Rights Act of 1964, 42 U.S.C. 2000e, et seq., did not include
protection from age discrimination, it required the Secretary of
Labor to complete a study of age-based employment decisions and
their consequences, and report its findings to Congress, see Pub. L.
88-352, 78 Stat. 265 (1964). The Department of Labor issued the
report in 1965, entitled ``The Older American Worker: Age
Discrimination in Employment,'' and commonly referred to as the
``Wirtz Report.'' Subsequently, the Department made a specific
proposal for legislation, at the request of Congress, Cline, 540
U.S. at 587, n.2 (citing 113 Cong. Rec. 1377 (1967)).
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With respect to Senator Yarborough's statement, the Court found it
to be the only endorsement of protection for younger employees against
acts that favor their elders in the Act's entire legislative history.
Cline, 540 U.S. at 599. Even though Senator Yarborough was a sponsor of
the Act, the Court concluded that his lone statement could not reflect
the intent of Congress, particularly in light of the clear emphasis
placed on protecting older workers. Id. For all of the reasons
described above, the Supreme Court found the Commission's regulation in
Sec. 1625.2(a) was ``clearly wrong.'' Id. at 600.
[[Page 46179]]
Revisions to Agency Regulations
Section 1625.2 is being revised as follows. The caption will be
changed from ``Discrimination between individuals protected by the
Act'' to ``Discrimination prohibited by the Act'' to reflect the
Supreme Court's holding that the ADEA permits employers to make age-
based employment decisions that favor relatively older employees. The
text of the regulation will be similarly revised, and Sec. 1625.2(b),
which explicitly permits employers to give older employees preferential
benefits in some circumstances, will be removed as redundant. Thus, the
new regulation will not have paragraphs (a) and (b), and will simply be
referred to as Sec. 1625.2. Other language changes in Sec. 1625.2 are
made for the sake of clarity.
Although the question examined by the Supreme Court in Cline was
the meaning of ``because of age'' in section 623(a) of the Act, its
holding that ``discrimination because of age'' refers only to
discrimination against relatively older persons unquestionably applies
to the Act as a whole. When the term ``age'' is used in other contexts
in the statute, it must be interpreted in a manner consistent with the
statute's overarching purpose.\6\ Thus, section 623(e)'s prohibition
against age discriminatory job advertisements \7\ must be construed to
bar only advertisements that favor younger individuals. Accordingly,
the portion of 29 CFR 1625.4(a) that prohibited job advertisements
favoring older persons has been revised to make clear that it is
permissible to encourage relatively older persons to apply.
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\6\ In Cline, the Supreme Court explicitly endorsed the use of
different meanings for the term ``age'' in order to comply with the
statute's purpose. It noted, for example, ``[f]or the very reason
that reference to context shows that `age' means `old age' when
teamed with `discrimination,' the provision of an affirmative
defense when age is a bona fide occupational qualification readily
shows that `age' as a qualification means comparative youth.''
Cline, 540 U.S. at 596.
\7\ ``It shall be unlawful for an employer * * * to print or
cause to be printed or published, any notice or advertisement
relating to employment by such an employer * * * or any
classification or referral for employment * * * indicating any
preference, limitation, specification, or discrimination based on
age.'' 29 U.S.C. 623(e).
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In Sec. Sec. 1625.4(b) and 1625.5, which address the fact that
advertisements or applications that ask job applicants to disclose
their age may deter older persons from applying for the job, the phrase
``otherwise indicate discrimination based on age'' has been changed to
``otherwise indicate discrimination against older individuals.'' Other
minor revisions have been made to those sections to improve clarity. No
substantive changes are intended other than those necessary to explain
that the ADEA permits employers to favor older individuals.
Comments
The Commission invites comments on this proposed rule from all
interested parties, and will consider such comments received within the
previously noted time frames and formats. In proposing this rule, the
Commission coordinated with other federal agencies in accord with
Executive Order 12067, 43 FR 28967 (June 30, 1978), and, where
appropriate, incorporated agency comments into the proposal.
Executive Order 12866, Regulatory Planning and Review
The proposed rule has been drafted and reviewed in accordance with
Executive Order 12866, 58 FR 51735 (Sept. 30, 1993), section 1(b),
Principles of Regulation. It is considered to be a ``significant
regulatory action'' pursuant to section 3(f)(4) of Executive Order
12866 in that it arises out of the Commission's legal mandate to
enforce the Act, and therefore was circulated to the Office of
Management and Budget for review. This regulation is necessary to bring
the Commission's regulations into compliance with a recent Supreme
Court interpretation of the Act, and revise regulatory provisions that
were explicitly invalidated by the Court as outside the scope of the
Act. The proposed rule is intended to add to the predictability and
consistency between judicial interpretations and executive enforcement
of the Act.
The proposed rule would apply to all employers with at least 20
employees. See 29 U.S.C. 630(b).\8\ Nonetheless, the Commission does
not believe that the proposed rule will have a significant impact on
small business entities under the Regulatory Flexibility Act, because
it imposes no economic or reporting burdens on such firms. To the
contrary, the proposed rule expressly allows employers to make certain
previously forbidden age-based decisions without fear of liability.
Further, the proposed rule makes no change to employers' compliance
obligations under the Act in any manner or form, because employers
already were bound to follow the Supreme Court's interpretation of the
Act. For the reasons described above, the Commission also believes that
the proposed rule also imposes no burden that requires 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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\8\ 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: August 4, 2006.
For the Commission.
Cari M. Dominguez,
Chair.
For the reasons discussed in the preamble, the Equal Employment
Opportunity Commission proposes to amend 29 CFR chapter XIV part 1625
as follows:
PART 1625--AGE DISCRIMINATION IN EMPLOYMENT ACT
Subpart A--Interpretations
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.
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 Act, even if the younger
individual is at least 40 years old.
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
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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 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. E6-13138 Filed 8-10-06; 8:45 am]
BILLING CODE 6570-01-P