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WASHINGTONThe Equal Employment Opportunity Commission has issued revised regulations in response to a 2004 U.S. Supreme Court decision that permits employers to favor older workers over their younger colleagues.
But attorneys warn that a number of states' laws prohibit this practice and they would supersede the federal regulations.
In its first ruling on the issue, the high court ruled in General Dynamics Land Systems Inc. vs. Cline that the Age Discrimination in Employment Act permits corporate employee benefit plans to favor older employees over younger ones.
The ruling prevented what could have been a slew of litigation against employers, which for decades have designed and offered a wide array of benefit plans that offer more generous benefits to older employees (BI, March 1, 2004).
Some of these offerings include early retirement incentives, in which employers give extra benefits to encourage older employees to retire and avoid layoffs.
Under the new EEOC regulations, which were published in the July 6 Federal Register, favoring an older individual over a younger person because of age is not unlawful discrimination under the ADEA even if the younger person is at least 40.
An employer's request for date of birth or age on a job application is not in and of itself an ADEA violation, the regulations say also, but application forms that request such information "will be closely scrutinized to assure that the request is for a permissible purpose and not for purposes proscribed by the Act."
Similarly, help wanted ads that ask applicants to disclose their age do not violate the act, but will be closely scrutinized as well, the regulations say.
Richard I. Greenberg, an attorney with Jackson Lewis L.L.P. in New York said, "In general, I think the regulations are very straightforward and consistent with the Supreme Court's decision."
The regulations, however, do not affect applicable state, municipal or local laws, and a number of states, including New York, New Jersey and Maine, have laws that do not permit favoring an older individual over a younger person, say attorneys.
Jonathan D. Wetchler, an attorney with Wolf, Black, Schorr & Solis-Cohen L.L.P. in Philadelphia said although the EEOC regulations reflect the Cline decision, the EEOC is also "clarifying that there can still be state laws that are stricter when it comes to discrimination."
As a result, "Companies with employees in those states still need to recognize that they're not off the hook with respect to discriminating against people because they're younger." They need to read the "fine print," said Mr. Wetchler.