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: Coverage begins at age 40

Oct. 3, 2012

RESPONSE SENT VIA E-MAIL

Dear ____,

This responds to your question on the EEOC's youth@work web site concerning why the federal age discrimination law only protects people age 40 and older from employment discrimination and does not prohibit employers from using minimum age requirements to exclude younger people. Please note that this letter is limited to a discussion of the federal Age Discrimination in Employment Act of 1967 (ADEA). We encourage you to consider whether applicable state or local laws may provide broader coverage against age discrimination, including protections for younger workers.

As you are aware, the ADEA prohibits age discrimination in employment, but limits coverage "to individuals who are at least 40 years of age." 29 U.S.C. § 631(a). The Supreme Court found that the ADEA only protects older workers against discrimination that disfavors them as compared to younger workers, even when all of the workers are at least 40 years old. See generally, General Dynamics Land Sys. v. Cline, 540 U.S. 581 (2004) (workers age 40-49 who were treated less favorably than those 50 and older in retiree health benefit plan changes do not have claims, because the ADEA does not prohibit discrimination against relatively younger workers). Therefore, the ADEA would not prohibit minimum age requirements even if the minimum age requirement were set at age 40 or above, because the minimum age requirement would benefit the relatively older workers and only harm the relatively younger workers.

Answering why this limitation exists requires some explanation of legislative history. In Title VII of the Civil Rights Act of 1964, Congress considered, but ultimately rejected, adding age as a protected basis alongside race, color, religion, sex, and national origin. Cline, 540 U.S. at 586-587. Instead, Congress required the Department of Labor (DOL) to "make a full and complete study of the factors which might tend to result in discrimination in employment because of age and the consequences of such discrimination on the economy and individuals affected." Pub. L. 88-352, 78 Stat. 240, 265 (July 2, 1964).

The Department of Labor's report concluded that arbitrary age discrimination was pervasive, was based on unjustified assumptions about the ability of older workers, and was amenable to correction through a "well administered and well enforced statute." See Report of the Secretary of Labor, The Older American Worker: Age Discrimination in Employment, 21-22 (1965). This DOL report "was devoid of any indication that the [DOL] had noticed unfair advantages accruing to older employees at the expense of their juniors." Cline, 540 U.S. at 587. To the contrary, the report suggested that younger workers, who at the time made up the majority of the electorate, had a responsibility to support efforts to end arbitrary discrimination against older workers, even though they "are not themselves adversely affected by it and may even be its temporary beneficiaries." Report of the Secretary of Labor, at 3. Congress then instructed the Department of Labor to create a specific proposal for legislation based on the report's findings, which heavily influenced Congress in drafting the ADEA. See, Cline, 540 U.S. at 590 (noting that the Department of Labor's report and proposal for legislation provides "the setting of the ADEA's core substantive provision").

With respect to setting the threshold for coverage at age 40, the original bills concerning age discrimination in employment started coverage at age 45, consistent with the Department of Labor's report and legislative proposal. See, e.g., S. 788, 90^th Congress, § 2(f) (as introduced to the Senate, Feb. 1, 1967) ("no employer . . . shall . . . refuse to hire, discharge, or otherwise discriminate against any person forty-five years of age or older . . . ."). Ultimately, the bill that became the ADEA was amended to lower the coverage threshold from 45 to 40, because "testimony indicated this to be the age at which age discrimination in employment becomes evident." H.R. Rep. No. 90-805, at 6 (1967). Congress refused calls to limit coverage under the Act to even earlier ages. Id. When interpreting this limitation, the Supreme Court remarked that, "[i]f Congress had been worrying about protecting the younger against the older, it would not likely have ignored everyone under age 40." Cline, 540 U.S. at 591.

We hope this informal discussion of your question is helpful. It does not "represent the formal position of the Commission and does not commit the Commission to the views expressed [here]in." See 29 CFR § 1626.20(c).

Sincerely,

Carol R. Miaskoff
Assistant Legal Counsel
Title VII, EPA, and ADEA Division