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Guest Article

Deloitte logo

(From the August 21, 2006 issue of Deloitte's Washington Bulletin, a periodic update of legal and regulatory developments relating to Employee Benefits.)

EEOC Proposed Rule Affirms No ADEA Claims for Reverse Age Discrimination

Proposed rules that codify the Supreme Court's ruling barring claims based on reverse age discrimination are open for comment and expected to receive significant support from employers. 71 FR 46117 (August 11, 2006). The Equal Employment Opportunity Commission's (EEOC) proposals would amend rules under the Age Discrimination in Employment Act ("ADEA") to reflect a Supreme Court decision in General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581 (2004). In that case, the Supreme Court ruled the ADEA does not permit reverse age discrimination claims. The Supreme Court ruling effectively invalidated an EEOC regulation (29 CFR § 1625.2(a)) that suggests reverse age discrimination claims are possible.

The proposed regulation would change 29 CFR § 1625.2 to include a sentence which specifically acknowledges the Cline ruling. The new rule would 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."

What Is "Reverse Discrimination"?

In general, the ADEA prohibits employers from discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment, because of that individual's age. However, the statute limits its protection to "individuals who are at least 40 years of age" -- i.e., the "protected class."

Clearly, individuals who are not within ADEA's protected class do not have any enforceable rights under the ADEA. In other words, workers under age 40 cannot use the ADEA to challenge their employer's decision to provide better benefits to older workers, which some might characterize as a form of "reverse discrimination." But what if the "younger workers" are also members of ADEA's protected class -- can they use the ADEA to challenge better benefits for "older workers"? That was the "reverse discrimination" issue in Cline.

Although the EEOC and the Sixth Circuit Court of Appeals had taken the position that reverse discrimination claims by members of the ADEA protected class were permitted, the Supreme Court disagreed. To reach its conclusion the Supreme Court created and employed a new rule of statutory construction focusing on the ADEA's "social history." After reviewing the concerns that led Congress to enact the ADEA, the Supreme Court concluded (over the objections of three Justices) that, "The prefatory provisions and their legislative history make a case that we think is beyond a reasonable doubt, that the ADEA was concerned to protect a relatively old worker from discrimination that works to the advantage of the relatively young." In other words, the ADEA does not support reverse discrimination claims.

With the adoption of the EEOC's proposed rule, the ADEA regulations will now reflect the Cline ruling.

Deloitte logoThe information in this Washington Bulletin is general in nature only and not intended to provide advice or guidance for specific situations.

If you have any questions or need additional information about articles appearing in this or previous versions of Washington Bulletin, please contact: Robert Davis 202.879.3094, Elizabeth Drigotas 202.879.4985, Taina Edlund 202.879.4956, Laura Edwards 202.879.4981, Mike Haberman 202.879.4963, Stephen LaGarde 202.879-5608, Bart Massey 202.220.2104, Martha Priddy Patterson 202.879.5634, Tom Pevarnik 202.879.5314, Carlisle Toppin 202.220.2067, Tom Veal 312.946.2595, Deborah Walker 202.879.4955.

Copyright 2006, Deloitte.

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