EEOC ISSUES NEW RULE ADDRESSING "REVERSE AGE DISCRIMINATION"

In early July 2007 the U.S. Equal Employment Opportunity Commission (EEOC) issued a new rule governing liability under the Age Discrimination in Employment Act (ADEA).  The ADEA protects employees age 40 and older from discrimination in favor of younger workers.  The new rule addresses "reverse age discrimination" and it provides that employers are not liable under the ADEA when they favor older workers over younger workers, even when both are over 40 and thus covered by the Act.[1]

 The rule change was originally proposed by the EEOC in August 2006 to revise and clarify the preexisting ADEA regulations that prohibited any age-based favoritism in regard to employees age 40 and over.  The proposed changes were issued in response to the United States Supreme Court's decision in General Dynamics Land Systems, Inc. v. Cline, No. 02-1080; 540 U.S. 581 (2004) where the Supreme Court held that the ADEA was not intended to protect younger employees from being passed over for more preferable treatment accorded to relatively older employees (i.e., “reverse age discrimination”).

 

The new ADEA rule also provides guidance to employers regarding help wanted notices or advertisements.  For example, a help wanted notice or advertisement cannot contain terms and phrases that limit or deter the employment of older individuals.  Nevertheless, employers may post advertisements or notices expressing a preference for older individuals.  Finally, the new rule applies only to federal liability under the ADEA and does not affect state or local laws.

 

Given the aging population and the large number of baby boom generation employees in the today’s workforce, issues involving age discrimination will continue to be in the forefront for many years to come.   

 

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Jackson & Campbell 's Employment Law Practice Group can help employers be vigilant of the risk of liability arising from age discrimination and help counsel their managers with practical suggestions on how to avoid ADEA claims.

 

 

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