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Supreme Court Holds That ADEA Does Not Prevent An Employer From Favoring Older Employees Over Those Who Are Younger

Reversing a Sixth Circuit decision that was supported by the EEOC, the U.S. Supreme Court has clarified that employers are free to favor older employees without violating the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq. ("ADEA").  The prohibition in ADEA against "discrimination . . . because of [an] individual's age" means only those forms of discrimination detrimental to older employees, and not the reverse.  General Dynamics Land Systems, Inc. v. Cline, No. 02-1080, slip op. (Feb. 24, 2004).

The case arose after General Dynamics negotiated a collective bargaining agreement which eliminated retirement health benefits for future retirees, except for current employees who were then over the age of 50.  A group of affected employees under age 50 objected, arguing that they were excluded because of their comparatively younger age (i.e. 40-49).  In essence, they claimed "reverse" age discrimination.

The question of whether ADEA addresses any distinction based on age, or only those differences which are detrimental to older workers, is one which has vexed employers and courts over the years.  Most judicial decisions have held that an employment policy that favors older workers, even if their younger counterparts are disfavored, is lawful under ADEA.  By contrast, the Equal Employment Opportunity Commission ("EEOC") has endorsed the opposite view.

In this case, the Sixth Circuit had relied on an EEOC interpretive regulation, 29 CFR §1625.2(a)(2003), restricting an employer from favoring older employees based on their age.  The EEOC also submitted an amicus ("friend of the court") brief to the Supreme Court, urging it to affirm that view.

In a 7-2 decision authored by Justice Souter (Justices Scalia and Thomas dissenting), the Court rejected the Sixth Circuit's and EEOC's view, reading the term "age" to mean comparatively "older age" rather than merely the "length of a persons life."  In doing so, the Court relied on the language and intended purpose of the ADEA statute, and its legislative history and "social" history (i.e. the social problem it was enacted to address).  The Court emphasized the fact that ADEA's protections extend only to those over the age of 40, and observed that "[i]f Congress had been worrying about protecting the younger against the older, it would not likely have ignored everyone under 40."  Id. at 8.  Notably, the Court accorded no weight to the EEOC's existing regulation on this subject, which it dismissed as "clearly wrong."  Id. at 17.

While the General Dynamics case clarifies these issues on the federal level, its impact on state law remains unclear.  In New York State, among others, the Human Rights Law forbids discrimination against those of any age (above 18), not merely those above age 40 -- a key distinction in statutory language and coverage.  New York has not yet definitely determined whether its law would cover a "reverse" age discrimination claim of the type dismissed by the Supreme Court in General Dynamics.