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.

ADA & ADEA: HIRING PRACTICES

November 5, 2012

[ADDRESS]

Dear ____,

By e-mail dated October 24, 2012, you have inquired whether it would violate the law to establish a business that employs only individuals with disabilities and "seniors" (not defined in your inquiry).  As explained in more detail below, the two relevant federal employment discrimination laws enforced by the EEOC -- the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA) -- both permit such a preference.

The ADA, as amended effective January 1, 2009, provides:  "Nothing in this chapter shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual's lack of disability."  42 U.S.C. § 12201(g); see also 2008 House Judiciary Committee Report at 21 (this provision "prohibits reverse discrimination claims by disallowing claims based on the lack of disability").  Additionally, the ADA does not affect "laws that may require the affirmative recruitment or hiring of individuals with disabilities, or any voluntary affirmative action employers may undertake on behalf of individuals with disabilities."  Appendix to 29 C.F.R. § 1630.4.

The ADEA, as amended, prohibits age discrimination in employment, but limits coverage "to individuals who are at least 40 years of age."  29 U.S.C. § 631(a).  Moreover, the ADEA only prohibits discrimination that disfavors older workers as compared to younger workers, even when all of the workers are at least 40 years old.  General Dynamics Land Sys. v. Cline, 540 U.S. 581, 591 (2004).  When interpreting the ADEA in this manner, the Supreme Court observed that, "[i]f Congress had been worrying about protecting the younger against the older, it would not likely have ignored everyone under age 40."  Therefore, the ADEA would not prohibit minimum age requirements even if the minimum age requirement were set at over age 40, because the minimum age requirement would benefit the relatively older workers and only harm the relatively younger workers.

However, there are some state and local laws that are more restrictive than the ADEA with respect to age discrimination, prohibiting any age preference in employment, even a preference for older workers.  You should consult the laws in the jurisdictions in which you will be operating or employing individuals. We hope this information is helpful.  If you have further questions, please contact me or Senior Attorney Advisor Jeanne Goldberg at 202.663.4640.

This has been an informal discussion of the issues you raised, and does not constitute an official opinion of the U.S. Equal Employment Opportunity Commission.

Sincerely,

/s/
Christopher J. Kuczynski
Assistant Legal Counsel

This page was last modified on December 6, 2012.