EEOC Issues Proposed Regulaton Permitting Employers To Favor Older Individuals

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a proposed regulation under the Age Discrimination in Employment Act (ADEA) to reflect a Supreme Court decision interpreting the ADEA as permitting employers to favor older individuals because of age. Under a prior regulation, overturned by the Court in 2004, the EEOC prohibited any age-based preference between persons age 40 or over, regardless of whether the treatment favors older or younger persons.

However, the Supreme Court rejected claims that favoritism toward older workers violated the ADEA and concluded Congress only intended "to protect a relatively old worker from discrimination that works to the advantage of the relatively young." Accordingly, if adopted after notice and comment, the final EEOC regulation will state:

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.

In addition, the EEOC regulations will be revised with respect to advertising to provide that "employers may post help wanted notices or advertisements expressing a reference for older individuals with terms such as over age 60, retirees, or supplement your pension."

Source: Federal Register Notice of proposed rulemaking (August 11, 2006)