New Job Ad Rules: "Older Workers" Apply Within!
September 3, 2006
by Employment & Labor Law / Employee Benefits Group
Stinson Morrison Hecker LLP
Copyright © 2006
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," under proposed rule changes issued August 11, 2006 by the U.S. Equal Employment Opportunity Commission (EEOC).
Current Regulations Bar Such Terms – Under existing EEOC regulations, phrases such as "age 40 to 50," "age over 65," "retired person," or "supplement your pension" are prohibited in help wanted notices or advertisements because they discriminate against others within the protected age group (40 and over) covered by the Age Discrimination in Employment Act (ADEA).
Supreme Court Rejected EEOC Interpretation – In 2004, the U.S. Supreme Court, in General Dynamics Land Systems, Inc. v. Cline, rejected claims that favoritism toward older workers violated the ADEA. It concluded that such claims were outside the scope of the ADEA because Congress only intended "to protect a relatively old worker from discrimination that works to the advantage of the relatively young."
EEOC Proposes to Change its Rules – As a result of the Cline decision, the EEOC on August 11, 2006 proposed to amend its regulations "to reflect the Supreme Court’s holding that the ADEA permits employers to make age-based employment decisions that favor relatively older workers," and "to make clear that it is permissible to encourage relatively older workers to apply" for employment. The rule change also would clearly state that "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 of age."
Effective Date – The proposed changes to the EEOC’s rules are subject to a 60-day comment period, and are not yet in effect.
Bottom Line - This change will allow employers greater flexibility to target their recruiting and advertising efforts more overtly on older workers, particularly in filling part-time jobs, seasonal positions, and early morning shifts.
Stinson Morrison Hecker LLP is one of the country's largest law firms with more than 335 attorneys in more than 45-industry-focused areas. If you would like more information regarding this summary, please contact one of our Employment & Labor Law and Employee Benefits attorneys.
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