Originally published May 2004
In a 6-3 decision, the United States Supreme Court recently held that an employer could provide favorable treatment for older employees without discriminating against those within the protected age group who are younger. In so doing, the Supreme Court reversed the decision of the U.S. Court of Appeals for the Sixth Circuit (Michigan, Ohio, Kentucky, Tennessee) in General Dynamics Land Systems, Inc. v. Cline.
The basis for the case was a collective bargaining agreement between General Dynamics and the United Auto Workers that eliminated General Dynamics’ obligation to provide health benefits to workers who subsequently retired, with the exception of those workers who were then currently employed and at least 50 years old. Workers who were at least 40 years old, and thus protected by the Age Discrimination in Employment Act of 1967 (ADEA), but who were not yet 50, filed a charge with the Equal Employment Opportunity Commission claiming that they were the victims of discrimination because of their age.
After conciliation failed, the workers who were at least 40 years old but younger than 50 filed a lawsuit. The district court dismissed their claim as one of "reverse age discrimination" and held that the ADEA does not protect younger workers against older workers. The Sixth Circuit, however, reversed that decision based in part on an EEOC regulation stating that, if an applicant 42 years old and one 52 years old apply for the same position, "the employer may not lawfully turn down either one on the basis of age …." 29 CFR §1625.2(a).
The Supreme Court rejected the position of the EEOC as "clearly wrong." The only discrimination prohibited by the Age Discrimination in Employment Act is that of "preferring young to old." The Court said that, "[i]f Congress had had been worrying about protecting the younger against the older, it would not likely have ignored everyone under 40." Added the Court, "The enemy of 40 is 30, not 50."
It seems that two concerns motivated the Court. First, it is clear that the Court majority does not see reverse age discrimination as a likely problem. It simply does not buy the claim that an employer would choose to favor an older rather than a younger individual simply because he or she is older. Second, and related to the first concern, the Court seems to fear opening a Pandora’s box. Allowing reverse discrimination claims could open challenges to a host of employment practices that provide benefits to older workers without limiting the rights of younger workers in any way. It could also lead to the filing of baseless claims of discrimination by younger employees claiming they were treated adversely as compared to older employees.
The ADEA therefore does not prevent favoring the older employer over the younger. Under the ADEA, employers are free to provide benefits to older workers beyond those benefits provided to younger workers — even those within the protected age group, such as enhanced retirement packages for workers who have reached a certain age. However, because some states prohibit discrimination against younger workers, employers should determine if they are complying with the laws in their states by doing so.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
