The Equal Employment Opportunity Commission issued a notice of proposed rulemaking on August 11 (71 FR 46177-46180) to amend its regulations on the Age Discrimination in Employment Act (“ADEA”) to reflect an earlier Supreme Court decision interpreting ADEA to permit employers to favor older individuals because of age.

The ADEA prohibits discrimination against individuals who are age 40 or older based on age, but the law does not specify the meaning of the term “age.” The Supreme Court addressed the interpretation of “age” in a 2004 decision (General Dynamics Land Systems, Inc. v. Cline) in which it rejected claims that favoritism toward older workers violated ADEA.

Proposed Regulation
The proposed change would amend current EEOC regulations to incorporate the Cline holding. The proposed rule states that favoring an older individual over someone younger because of age is not unlawful discrimination under ADEA, even if the younger individual is at least 40 years old.

Additionally, for purposes of consistency throughout the regulation, EEOC has proposed changes involving job advertisements to make clear that it is permissible to encourage relatively older persons to apply. The proposed rule states: “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.”

The proposed changes to the EEOC’s ADEA regulations are in the formal comment phase. Comments on the proposed amendment must be received on or before October 10, 2006.

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