EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADEA: Job Advertisements Seeking Older Workers

July 11, 2007

Dear :

This is in response to your letter dated June 11, 2007, asking for an opinion letter about the legality of placing job advertisements for applicants age 55 years or older. You state that some local newspapers have refused to allow you to place such advertisements on behalf of the Senior Community Service Employment Program (SCSEP) because the newspaper is concerned that the advertisements might be unlawful.

The issuance of formal interpretations or opinions by the Equal Employment Opportunity Commission (EEOC) under the Age Discrimination in Employment Act (ADEA) is discretionary. See EEOC Procedural Regulations, 29 C.F.R. § 1626.20 (b). The EEOC does not generally assess the legality of particular employment practices outside the context of specific charges of discrimination. This is because the appropriate resolution of discrimination charges involves an analysis of facts that differ from case to case. We can, however, provide you with the following general guidance on applicable principles.

The Age Discrimination in Employment Act, which the EEOC enforces, permits employers to advertise for older workers. Previously, EEOC regulations had stated that such advertisements were unlawful but, in 2004, the Supreme Court ruled that the ADEA only prohibits discrimination based on relatively older age and that employers do not violate the ADEA by favoring older over younger workers. General Dynamics Land System, Inc. v. Cline, 540 U.S. 581 (2004). Accordingly, the EEOC’s has amended its regulations to conform to Cline. With regard to job advertisements, the regulations state in relevant part that:

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.

See 72 FR 36873, 36875 §1625.4 (July 6, 2007) (emphasis added). Although the ADEA does not prohibit you from advertising for workers age 55 and over, such advertisements may be prohibited by state or local law. Thus, you should contact your Fair Employment Practices Agency to assure that the advertisements do not violate those laws.

We hope this information is helpful to you.

Sincerely,

Dianna B. Johnston
Assistant Legal Counsel

This page was last modified on August 7, 2007.

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