Guest Article

(From the July 23, 2007 issue of Deloitte's Washington Bulletin, a periodic update of legal and regulatory developments relating to Employee Benefits.)

EEOC Issues Final Update to ADEA Regulations to Bar "Reverse Discrimination" Claims

The Equal Employment Opportunity Commission (EEOC) has issued final rules to codify the Supreme Court's ruling barring Age Discrimination in Employment Act (ADEA) claims based on reverse age discrimination. 72 FR 36873 (July 6, 2007). The final regulations amend the ADEA rules to reflect the Supreme Court's 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.

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.

Final EEOC Regulations

The final regulation amends EEOC Reg. § 1625.2 to read as follows:

The third sentence was not included in the proposed regulations EEOC issued in 2006. EEOC added this sentence to address certain concerns raised in public comments on the proposed regulations. Specifically, one organization asked EEOC to confirm that the regulation does not create any new enforceable rights for older employees -- i.e., that neither the ADEA nor the regulation requires employers to favor older workers. A different organization asked EEOC to clarify that the ADEA does not preempt any state or local age discrimination laws that may provide greater protections than the ADEA. EEOC incorporated both suggestions in the new third sentence. Otherwise, the final and proposed regulations are identical.

The 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, Erinn Madden 202.572.7677, Bart Massey 202.220.2104, Laura Morrison 202.879.5653, Martha Priddy Patterson 202.879.5634, Tom Pevarnik 202.879.5314, Tom Veal 312.946.2595, Deborah Walker 202.879.4955. Copyright 2007, Deloitte.