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Favoring older applicants: Is it discrimination?

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in Discrimination and Harassment,Firing,Hiring,Human Resources

The EEOC has provided more legal cover for employers that actively recruit older applicants and offer better perks to their older employees.

New proposed EEOC regulations, which reflect a 2004 Supreme Court decision, say you won't violate federal age-discrimination law if you favor older employees over younger ones.

The federal Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against people age 40 or older in hiring, firing, pay or other work conditions on the basis of their age. (The ADEA applies to employers with 20 or more workers.)

EEOC regulations interpreting that law had prohibited all age-based preferences of people age 40 or older, regardless of whether the treatment favored older or younger people. (For example, providing better benefits to a 55-year-old worker than a 45-year-old could, in the past, have been deemed an ADEA violation because it harmed an over-40 person.)

A 2004 Supreme Court ruling (General Dynamics v. Cline) rejected that ADEA interpretation. The court said the ADEA wasn't intended to stop employers from favoring older employees over younger ones.

Last month, the EEOC finally unveiled new ADEA regulations that reflect the court ruling. Those proposed regulations state clearly: "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."

Impact of EEOC ruling

On a practical level, these new EEOC rules will mean:

Age references are allowed in help-wanted ads. The EEOC proposal clarifies that employers would be allowed to post help-wanted notices that express a preference for older workers, using terms such as "over age 60," "retirees" or "supplement your pension." (Still, the EEOC says, you shouldn't include phrases that deter older applicants, such as "recent college grad.")

You must keep age questions off applications. The proposed regulations say requesting an applicant's age or date of birth on an employment application is not, in itself, an ADEA violation. However, because such age inquiries may deter older people, the EEOC says age-requesting applications "will be closely scrutinized to assure that the request is for a permissible purpose and not for purposes proscribed by the Act." That means you should only request an applicant's age if you have a bona fide business reason, which is rare.

Look for a final version of the new rules in the coming months. Read the EEOC proposal at http://edocket.access.gpo.gov/2006/E6-13138.htm.  

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