One-Way Age Discrimination

These employees complained that favoring older employees over other, younger, employees who were also covered by the ADEA violated the Act. The EEOC agreed. When conciliation failed, Cline sued, alleging what the District Court called a case of “reverse age discrimination.” Cline v. General Dynamics Land Systems, Inc., 98 F. Supp.2d 846, 848 (N.D. Ohio 2000). Noting that no court had ever granted relief on such a claim, the court dismissed the complaint. A divided panel of the Sixth Circuit reversed. 296 F. 3d 466 (6th Cir. 2002).

The Sixth Circuit drew support for its view from the position taken by the EEOC's ADEA Regulations, which provide that “if two people apply for the same position, and one is 42 and the other 52, the employer may not lawfully turn down either one on the basis of age, but must make such decision on the basis of some other factor.” 29 C.F.R. ' 1625.2(a). The Sixth Circuit's holding created a split in the Circuits, and the Supreme Court granted General Dynamics' petition for certiorari to resolve the issue.

The Supreme Court's Analysis

In a 7-3 decision written by Justice Souter, the Court looked to the language of the ADEA, and specifically the generalization that the Act prohibits discrimination “because of [an] individual's age.” 29 U.S.C. ' 623(a)(1). Although one possible interpretation of the word “age” could be to protect younger employees (who are at least 40) from being treated less favorably than older employees, the Court found that analysis inconsistent with legislative history, common sense, and the “natural reading of the whole provision prohibiting discrimination … ” 124 S. Ct. at 1240.

Reviewing the legislative history of the Senate and House hearings on the bills that eventually became the ADEA, the Court noted that virtually all of the dialogue focused on the unjustified assumptions about the effect of age on ability to work. 124 S. Ct. at 1241-42. The Court found the record to reflect the common facts that an individual's chances to find and keep a job get worse over time; as between any two people, the younger is in the stronger position, the older more apt to be tagged with demeaning stereotype. From these records of the hearings, the Court found nothing to suggest that any workers were registering complaints about discrimination in favor of their seniors.

The Court looked for other indicia in the legislative history to suggest that Congress intended to protect younger workers within the protected age limits over older employees. It found none. Among other things, the Court considered the fact that Congress limited protection to those individuals 40 and above. “If Congress had been worrying about protecting the younger against the older,” said Justice Souter, “it would not likely have ignored everyone under 40. The youthful deficiencies of inexperience and unsteadiness invite stereotypical and discriminatory thinking about those a lot younger than 40, and prejudice suffered by a 40-year-old is not typically owing to youth, as 40-year-olds sadly tend to find out. The enemy of 40 is 30, not 50.” 124 S. Ct. at 1243. The Court also relied upon its decisions in Hazen Paper Co. v. Biggins, 507 U.S. 604, 611-12 (1993), O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313 (1996) and Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 409 (1985) as evidence of its understanding that “the very essence of age discrimination [is] for an older employee to be fired because the employer believes that productivity and competence decline with old age.” Biggins, 507 U. S. at 610.

Arguments in Opposition

Justice Souter next turned to the three arguments put forth by Cline. First, Cline suggested that the statutory language is clear: The word “age” should be given its ordinary meaning and read to mean the same throughout the ADEA. But the Court found that, unlike “race” or “sex” in Title VII, the meaning of “age” is different in different sections of the Act when read in its proper context.

Second, Cline argued that even if the text does not plainly mean what it is suggested to mean, a colloquy on the floor of the Senate involving a sponsor of the bill that became the ADEA buttresses the claim. The Court considered this single comment by Senator Yarborough that “[t]he law prohibits age being a factor in the decision to hire, as to one age over the other, whichever way [the] decision went,” 113 Cong. Rec. 31255 (1967), to be “a single outlying statement” that “cannot stand against a tide of context and history, not to mention 30 years of judicial interpretation producing no apparent legislative qualms.” 124 S. Ct. at 247-48.

Third, and perhaps most significant for future cases, the Court rejected as “clearly wrong” EEOC Regulation 1625.2(a). The Court has rejected administrative regulations when they do not comply with Congressional intent, but typically uses the analysis set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). In Cline, the Court instead took a more direct approach. Looking to the last case in which the Court addressed an EEOC regulation — Edelman v. Lynchburg College, 535 U.S. 106 (2002) — Justice Souter noted that there was no need to use the Chevron analysis there because the “EEOC was clearly right.” 124 S. Ct. at 1248. Assessing the Regulation at issue in Cline, said Souter, there was no need to use the Chevron analysis, or provide the EEOC with “any degree of deference because the Commission is clearly wrong.” Id.

Conclusion

Most commentators agree that the Court took a common-sense view in Cline, and one that is consistent with virtually every other court decision on the issue. But what does the outright rejection of an EEOC regulation, without resorting to the analysis of Chevron, suggest for the review of administrative regulations in subsequent cases? Many of the Department of Labor's FMLA regulations, for example, have been challenged as far exceeding the scope of the Congressional mandate provided by that Act. The approach now taken by lower courts in considering challenges to those regulations may turn out to be Cline's greatest legacy.

Does the Age Discrimination in Employment Act (ADEA) protect an employee regardless of his or her age, once that employee turns 40? The EEOC's regulation provides that it does, stating that the ADEA works both ways once someone reaches protected status at age 40. Finding this regulation “clearly wrong,” the Supreme Court recently held in General Dymanics Land Systems Inc. v. Cline , 124 S. Ct. 1236 (2004), that the ADEA does not protect younger employees who are treated less favorably than older employees.

The Facts of Cline

Union negotiations between General Dynamics and the UAW eliminated the company's obligation to provide health benefits to retired employees. The agreement grandfathered then-current workers who were at least 50 years old, however, permitting them to retain the benefit. Cline and a number of other employees who were at least 40, but under 50, objected to this new term of the collective bargaining agreement.

These employees complained that favoring older employees over other, younger, employees who were also covered by the ADEA violated the Act. The EEOC agreed. When conciliation failed, Cline sued, alleging what the District Court called a case of “reverse age discrimination.” Cline v. General Dynamics Land Systems, Inc. , 98 F. Supp.2d 846, 848 (N.D. Ohio 2000). Noting that no court had ever granted relief on such a claim, the court dismissed the complaint. A divided panel of the Sixth Circuit reversed. 296 F. 3d 466 (6th Cir. 2002).

The Sixth Circuit drew support for its view from the position taken by the EEOC's ADEA Regulations, which provide that “if two people apply for the same position, and one is 42 and the other 52, the employer may not lawfully turn down either one on the basis of age, but must make such decision on the basis of some other factor.” 29 C.F.R. ' 1625.2(a). The Sixth Circuit's holding created a split in the Circuits, and the Supreme Court granted General Dynamics' petition for certiorari to resolve the issue.

The Supreme Court's Analysis

In a 7-3 decision written by Justice Souter, the Court looked to the language of the ADEA, and specifically the generalization that the Act prohibits discrimination “because of [an] individual's age.” 29 U.S.C. ' 623(a)(1). Although one possible interpretation of the word “age” could be to protect younger employees (who are at least 40) from being treated less favorably than older employees, the Court found that analysis inconsistent with legislative history, common sense, and the “natural reading of the whole provision prohibiting discrimination … ” 124 S. Ct. at 1240.

Reviewing the legislative history of the Senate and House hearings on the bills that eventually became the ADEA, the Court noted that virtually all of the dialogue focused on the unjustified assumptions about the effect of age on ability to work. 124 S. Ct. at 1241-42. The Court found the record to reflect the common facts that an individual's chances to find and keep a job get worse over time; as between any two people, the younger is in the stronger position, the older more apt to be tagged with demeaning stereotype. From these records of the hearings, the Court found nothing to suggest that any workers were registering complaints about discrimination in favor of their seniors.

The Court looked for other indicia in the legislative history to suggest that Congress intended to protect younger workers within the protected age limits over older employees. It found none. Among other things, the Court considered the fact that Congress limited protection to those individuals 40 and above. “If Congress had been worrying about protecting the younger against the older,” said Justice Souter, “it would not likely have ignored everyone under 40. The youthful deficiencies of inexperience and unsteadiness invite stereotypical and discriminatory thinking about those a lot younger than 40, and prejudice suffered by a 40-year-old is not typically owing to youth, as 40-year-olds sadly tend to find out. The enemy of 40 is 30, not 50.” 124 S. Ct. at 1243. The Court also relied upon its decisions in Hazen Paper Co. v. Biggins , 507 U.S. 604, 611-12 (1993), O'Connor v. Consolidated Coin Caterers Corp. , 517 U.S. 308, 313 (1996) and Western Air Lines, Inc. v. Criswell , 472 U.S. 400, 409 (1985) as evidence of its understanding that “the very essence of age discrimination [is] for an older employee to be fired because the employer believes that productivity and competence decline with old age.” Biggins , 507 U. S. at 610.

Arguments in Opposition

Justice Souter next turned to the three arguments put forth by Cline. First, Cline suggested that the statutory language is clear: The word “age” should be given its ordinary meaning and read to mean the same throughout the ADEA. But the Court found that, unlike “race” or “sex” in Title VII, the meaning of “age” is different in different sections of the Act when read in its proper context.

Second, Cline argued that even if the text does not plainly mean what it is suggested to mean, a colloquy on the floor of the Senate involving a sponsor of the bill that became the ADEA buttresses the claim. The Court considered this single comment by Senator Yarborough that “[t]he law prohibits age being a factor in the decision to hire, as to one age over the other, whichever way [the] decision went,” 113 Cong. Rec. 31255 (1967), to be “a single outlying statement” that “cannot stand against a tide of context and history, not to mention 30 years of judicial interpretation producing no apparent legislative qualms.” 124 S. Ct. at 247-48.

Third, and perhaps most significant for future cases, the Court rejected as “clearly wrong” EEOC Regulation 1625.2(a). The Court has rejected administrative regulations when they do not comply with Congressional intent, but typically uses the analysis set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984). In Cline, the Court instead took a more direct approach. Looking to the last case in which the Court addressed an EEOC regulation — Edelman v. Lynchburg College , 535 U.S. 106 (2002) — Justice Souter noted that there was no need to use the Chevron analysis there because the “EEOC was clearly right.” 124 S. Ct. at 1248. Assessing the Regulation at issue in Cline, said Souter, there was no need to use the Chevron analysis, or provide the EEOC with “any degree of deference because the Commission is clearly wrong.” Id.

Conclusion

Most commentators agree that the Court took a common-sense view in Cline, and one that is consistent with virtually every other court decision on the issue. But what does the outright rejection of an EEOC regulation, without resorting to the analysis of Chevron, suggest for the review of administrative regulations in subsequent cases? Many of the Department of Labor's FMLA regulations, for example, have been challenged as far exceeding the scope of the Congressional mandate provided by that Act. The approach now taken by lower courts in considering challenges to those regulations may turn out to be Cline's greatest legacy.