EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADEA: NEH proposed rule implementing the Age Discrimination Act of 1975

July 8, 2013

Ms. Gina Raimond
Attorney-Advisor
Office of General Counsel
National Endowment for the Humanities
1100 Pennsylvania Avenue, N.W., Room 529
Washington, D.C. 20506

Re: NEH Proposed Rule, Age Discrimination Act of 1975

Dear Ms. Raimond:

This is in response to the request for comments on a proposed regulation (NPRM) of the National Endowment for the Humanities (NEH), published in the Federal Register on May 15, 2013, 78 FR 28569, which would implement provisions of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6101, et seq. (ADA75).⁽¹⁾ That law prohibits discrimination on the basis of age in programs or activities receiving Federal financial assistance.

The Equal Employment Opportunity Commission (EEOC) enforces the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq. (ADEA). Section 4 of the ADEA, 29 U.S.C. § 623, in general makes it unlawful for an employer, employment agency, or labor organization to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's age. The EEOC is charged by Executive Order 12067 with ensuring consistency with respect to the federal government's rules prohibiting employment discrimination.⁽²⁾

Upon review of the NPRM, we believe there could be confusion in the employer community and among employees who may not be aware that the ADA75 and ADEA are separate statutes with different purposes, procedures, and remedies. Accordingly, we make the following comments.

1. The ADA75, at 42 U.S.C. § 6103(c)(2), states that "[n]othing in this chapter shall be construed to amend or modify the [ADEA], or to affect the rights or responsibilities of any person or party pursuant to such Act." However, the NPRM does not reference either § 6103(c)(2) or the ADEA itself. We recommend that the regulation reference specifically § 6103(c)(2) and state clearly that the regulation does not in any way affect any rights or responsibilities under the ADEA, the EEOC's regulations under the ADEA (published at 29 C.F.R. §§ 1625, 1626, and 1627), or any statements of policy promulgated by EEOC under the ADEA.
2. In § 1172.2(b)(2), the NPRM states that the ADA75 does not apply to "[a]ny employment practice of any employer, employment agency, labor organization, or any labor-management joint apprenticeship training program, except for any program or activity receiving Federal financial assistance for public service employment under the Workforce Investment Act of 1998 (29 U.S.C. 2801, et seq.)." Thus, it appears that the only direct overlap between the ADA75 and the ADEA is with respect to coverage of employment practices related to programs or activities receiving assistance for employment under the Workforce Investment Act of 1998.⁽³⁾ We recommend that §1172.2(b)(2) also state that, to the extent the ADA75 applies to employment, ADEA standards, as interpreted by the EEOC, apply in that context.
3. The NPRM, at § 1172.36(a)(2), states that NEH may refer any violations to (i) the Department of Justice and (ii) other agencies. Part (ii) should state specifically that referrals will be made to the EEOC with respect to violations of the ADEA. We also recommend that, in the future, our agencies discuss how such referrals should be made.
4. The ADEA should be added to the Definitions sections in § 1172.3 of the NPRM. With regard to the definition of "Age" in the same section, please note that the Supreme Court held in General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 600 (2004) that "the [ADEA] does not mean to stop an employer from favoring an older employee over a younger one." The NEH may want to consider whether Cline warrants any revisions to its ADA75 regulation.
5. 42 U.S.C. § 6103(b)(1) sets out two defenses to the general provisions of the ADA75: "It shall not be a violation of any provision of this chapter, or of any regulation issued under this chapter, for any person to take any action otherwise prohibited by the provisions of section 6102 of this title if, in the program or activity involved--(A) such action reasonably takes into account age as a factor necessary to the normal operation or the achievement of any statutory objective of such program or activity; or (B) the differentiation made by such action is based upon reasonable factors other than age." The NPRM discusses the two defenses at §§ 1172.12(a) and (b), respectively.
   1. The defense in subparagraph (A) appears to be functionally similar to the "bona fide occupational qualification" (BFOQ) defense set out in § 4(f)(1) of the ADEA, 29 U.S.C. § 623(f)(1), and the language of the defense in subparagraph (B) is identical to the "reasonable factors other than age" (RFOA) defense set out in the same ADEA section. EEOC regulations at 29 C.F.R. §§ 1625.6 and 1625.7 address the BFOQ and RFOA defenses, respectively. We suggest that NEH consider whether any points made in the EEOC's BFOQ or RFOA regulations should be adapted for inclusion in the ADA75 regulation. For example, the Supreme Court's decision in Smith v. City of Jackson, 544 US 228 (2005), caused the EEOC to revise the EEOC's "reasonable factor other than age" regulation. See 29 C.F.R. § 1625.7.⁽⁴⁾ The NEH may want to consider whether Smith warrants a revision of § 1172.12(b).
   2. Section § 1172.12(d) states that "[i]f a recipient operating a program or activity provides special benefits to the elderly or to children, such use of age distinctions shall be presumed to be necessary to the normal operation of the program or activity, notwithstanding the [general provision prohibiting age discrimination]." We recommend that NEH provide clarification on this issue with respect to employment. We note that, under the ADEA, if such "special benefits" were not mandated by law, denying them to individuals in the 40 to 64 age group while allowing the benefits to younger individuals could be a violation.
6. Finally, in §§ 1172.33(c) and 1172.34(a)(1)(ii), the NPRM discusses settlement agreements. Please note that if the settlement purports to include rights under the ADEA, § 7(f) of the ADEA, 29 U.S.C. § 626(f), sets out specific rules for the waiver of rights and claims under the ADEA. See 29 C.F.R. § 1625.22.

If you have any questions related to our comments, please contact Corbett Anderson, Assistant Legal Counsel for Coordination, at 202-663-4579 or corbett.anderson@eeoc.gov; or Paul E. Boymel, Senior Attorney-Advisor, at 202-663-4692 or paul.boymel@eeoc.gov.

Sincerely,

/s/

Peggy R. Mastroianni
Legal Counsel

FOOTNOTES

(1) The NPRM, in the first line of the Background Information section, lists the statute as 29 U.S.C. § 6101..

(2)  http://www.eeoc.gov/federal/eo-12067.cfm

(3)  The NPRM does not appear to set out a statutory reference relating to the coverage of such programs under the ADA75. We suggest adding such a reference for purposes of clarity.

(4)  See also EEOC Issues Final Rule on "Reasonable Factors Other Than Age" Under the ADEA, at http://www.eeoc.gov/eeoc/newsroom/release/3-29-12.cfm

This page was last modified on August 15, 2013.