Earlier this year, the Equal Employment Opportunity Commission (EEOC) revised and amended its regulations under the Age Discrimination in Employment Act (ADEA). The EEOC said its revisions were only to “conform” the regulations with current Supreme Court interpretations, but nothing could be further from the truth.
The Chamber supports equal employment opportunity and proper implementation of ADEA. However, the EEOC’s revised regulations are inconsistent with the plain language of the ADEA, legislative history, and the holdings of the Supreme Court. The very restrictive interpretation of the primary defense used under ADEA—for employment actions based on a “reasonable factor other than age”—will subject routine economic decisions by businesses to second-guessing by government agencies woefully inept to make these kinds of judgments. For example, if an employer makes a difficult decision to close a line of its business in hopes of returning to profitability, should government bureaucrats be allowed to question whether the employer should have considered alternative economic decisions with less of an impact on older workers?
The revisions are also at attack on subjective decision-making, contrary to Supreme Court precedent and confuses best practices with legal duty. We made these concerns known to the agency, during the public comment period and later before the Agency voted to approve the regulations. While the majority of the Commission turned a deaf ear to our concerns, two Commissioners spoke out in strong opposition to the proposal. While the EEOC does not permit dissenting opinions to be filed with its regulations, we submitted a Freedom of Information Act request to obtain a detailed legal memo prepared by Commissioner Lipnic highlighting the rule’s failings.
Fortunately, the Congress is taking the first step in trying to rein-in this dangerous agency overreach. The House Committee on Appropriations has approved a funding bill (see section 540) for the EEOC that blocks implementation of the new rules. The full House of Representatives is considering the bill this week. Unfortunately, it looks like there will be an effort to strip out this important provision.
The Appropriations Committee was right to tell the EEOC that Congress will not stand for bureaucratic second guessing of routine economic decisions that businesses make every day. If the House strips out this important provision, it will just further embolden out-of-control regulation.