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AARP Hails New Regulations Clarifying Age Discrimination Protections

AARP today applauded the federal Equal Employment Opportunity Commission (EEOC) for its announcement of new regulations clarifying age discrimination protections for workers over 40


March 29, 2012


Dave Nathan


AARP Hails New Regulations Clarifying Age Discrimination Protections

Washington, DC – AARP today applauded the federal Equal Employment Opportunity Commission (EEOC) for its announcement of new regulations clarifying age discrimination protections for workers over 40.

“Age discrimination is a serious and growing problem,” said Nancy LeaMond, AARP’s Executive Vice President, in endorsing the regulations.  “Workers and employers alike will benefit from the helpful guidance provided by the EEOC.”

LeaMond noted that AARP has long been at the forefont of efforts to develop and improve workplace protections under the federal Age Discrimination in Employment Act (ADEA), and to make sure that age discrimination is treated just as seriously as other forms of workplace discrimination.

AARP’s LeaMond said that for workers, the practical outcome of the new guidelines is that there is a better chance of preventing discrimination before it happens. But, if it does, older workers will have a meaningful chance to get their day in court and prove their case. 

What is at stake in the new regulations is a legal concept called “disparate impact,” which involves employment practices that are neutral on their face, but which have a discriminatory or disproportionate impact on a group protected by federal anti-discrimination law, in this case older workers.

Disparate impact contrasts with “disparate treatment” cases where intentional discriminatory treatment must be shown.  With disparate treatment, a worker must prove that an employer took an adverse action against them because of their age. With AARP’s backing, the U.S. Supreme Court has held that complaints about disparate impact are permitted under the ADEA, in a manner similar to – but not the same as – how they are permitted for practices that adversely affect women, minorities, and others under other federal laws, such as Title VII of the 1964 Civil Rights Act.

The high court has ruled that policies or practices that have a greater adverse impact on older workers violate the ADEA unless they can be justified by a “reasonable factor other than age.”

However, the Court has not provided much guidance on which kinds of employer actions would meet the “reasonable factors other than age” defense.

Now the EEOC has defined what “reasonable” means:  employers must be mindful of their responsibilities not to discriminate on the basis of age, and they must design and implement their decisions reasonably, to achieve a legitmate business purpose. The regulations list several considerations relevant to deciding whether the employer acted reasonably. If the action is based on reasonable factors other than age, it is lawful, even if it does have a disparate impact on older workers.   

LeaMond said that, for employers, the regulations will provide practical guidance on how to avoid problems and litigation. They will encourage employers to be more diligent at the front end and to examine whether seemingly neutral practices will have a discriminatory impact on older workers, just like they already do when they try to avoid unintentional discrimination against women, minorities, and others. 

“This will not lead to an avalanche of new litigation,” said Laurie McCann, an age discrimination attorney for AARP, “but it will caution employers to consider the impact of their plans in advance. Only employers that do not heed EEOC’s guidance are likely to run afoul of the law.” 


AARP is a nonprofit, nonpartisan organization with a membership that helps people 50+ have independence, choice and control in ways that are beneficial and affordable to them and society as a whole. AARP does not endorse candidates for public office or make contributions to either political campaigns or candidates. We produce AARP The Magazine, the definitive voice for 50+ Americans and the world's largest-circulation magazine with over 35.1 million readers; AARP Bulletin, the go-to news source for AARP's millions of members and Americans 50+; AARP VIVA, our bilingual multimedia platform for Hispanic members; and our website, AARP Foundation is an affiliated charity that provides security, protection, and empowerment to older persons in need with support from thousands of volunteers, donors, and sponsors. We have staffed offices in all 50 states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands.

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