Pt. 1625 29 CFR Ch. XIV (7–1–07 Edition)
(3) A matter published and specifi- seq., hereinafter referred to as the Act.
cally designated as such in the FED- References to employers in this part
ERAL REGISTER. state principles that are applicable not
(b) An opinion letter issued pursuant only to employers but also to labor or-
to paragraph (a)(1) or (a)(2) of this sec- ganizations and to employment agen-
tion, when issued to a specific ad- cies.
dressee, has no effect upon cir-
cumstances beyond the situation of the § 1625.2 Discrimination between indi-
specific addressee. viduals protected by the Act.
(a) It is unlawful in situations where
PART 1625—AGE DISCRIMINATION this Act applies, for an employer to
IN EMPLOYMENT ACT discriminate in hiring or in any other
way by giving preference because of
Subpart A—Interpretations age between individuals 40 and over.
Thus, if two people apply for the same
Sec. position, and one is 42 and the other 52,
the employer may not lawfully turn
1625.2 Discrimination between individuals
protected by the Act. down either one on the basis of age, but
1625.3 Employment agency. must make such decision on the basis
1625.4 Help wanted notices or advertise- of some other factor.
ments. (b) The extension of additional bene-
1625.5 Employment applications. fits, such as increased severance pay,
1625.6 Bona fide occupational qualifications. to older employees within the pro-
1625.7 Differentiations based on reasonable
tected group may be lawful if an em-
factors other than age.
1625.8 Bona fide seniority systems. ployer has a reasonable basis to con-
1625.9 Prohibition of involuntary retire- clude that those benefits will counter-
ment. act problems related to age discrimina-
1625.10 Costs and benefits under employee tion. The extension of those additional
benefit plans. benefits may not be used as a means to
1625.11 Exemption for employees serving accomplish practices otherwise prohib-
under a contract of unlimited tenure. ited by the Act.
1625.12 Exemption for bona fide executive or
high policymaking employees. [46 FR 47726, Sept. 29, 1981, as amended at 53
FR 5972, Feb. 29, 1988]
Subpart B—Substantive Regulations
§ 1625.3 Employment agency.
1625.21 Apprenticeship programs.
1625.22 Waivers of rights and claims under (a) As long as an employment agency
the ADEA. regularly procures employees for at
1625.23 Waivers of rights and claims: Tender least one covered employer, it qualifies
back of consideration. under section 11(c) of the Act as an em-
AUTHORITY: 81 Stat. 602; 29 U.S.C. 621, 5 ployment agency with respect to all of
U.S.C. 301, Secretary’s Order No. 10–68; Sec- its activities whether or not such ac-
retary’s Order No. 11–68; sec. 12, 29 U.S.C. 631, tivities are for employers covered by
Pub. L. 99–592, 100 Stat. 3342; sec. 2, Reorg. the act.
Plan No. 1 of 1978, 43 FR 19807.
(b) The prohibitions of section 4(b) of
SOURCE: 46 FR 47726, Sept. 29, 1981, unless the Act apply not only to the referral
otherwise noted. activities of a covered employment
agency but also to the agency’s own
Subpart A—Interpretations employment practices, regardless of
the number of employees the agency
§ 1625.1 Definitions. may have.
The Equal Employment Opportunity
Commission is hereinafter referred to § 1625.4 Help wanted notices or adver-
as the Commission. The terms person, tisements.
employer, employment agency, labor orga- (a) When help wanted notices or ad-
nization, and employee shall have the vertisements contain terms and
meanings set forth in section 11 of the phrases such as age 25 to 35, young, col-
Age Discrimination in Employment lege student, recent college graduate, boy,
ebenthall on PRODPC61 with CFR
Act of 1967, as amended, 29 U.S.C. 621 et girl, or others of a similar nature, such
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Equal Employment Opportunity Comm. § 1625.7
a term or phrase deters the employ- § 1625.6 Bona fide occupational quali-
ment of older persons and is a violation fications.
of the Act, unless one of the exceptions (a) Whether occupational qualifica-
applies. Such phrases as age 40 to 50, tions will be deemed to be ‘‘bona fide’’
age over 65, retired person, or supplement to a specific job and ‘‘reasonably nec-
your pension discriminate against oth- essary to the normal operation of the
ers within the protected group and, particular business,’’ will be deter-
therefore, are prohibited unless one of mined on the basis of all the pertinent
the exceptions applies. facts surrounding each particular situ-
(b) The use of the phrase state age in ation. It is anticipated that this con-
help wanted notices or advertisements cept of a bona fide occupational quali-
is not, in itself, a violation of the Act. fication will have limited scope and ap-
But because the request that an appli- plication. Further, as this is an excep-
cant state his age may tend to deter tion to the Act it must be narrowly
older applicants or otherwise indicate construed.
discrimination based on age, employ- (b) An employer asserting a BFOQ de-
ment notices or advertisements which fense has the burden of proving that (1)
include the phrase ‘‘state age,’’ or any the age limit is reasonably necessary
similar term, will be closely scruti- to the essence of the business, and ei-
ther (2) that all or substantially all in-
nized to assure that the request is for a
dividuals excluded from the job in-
volved are in fact disqualified, or (3)
§ 1625.5 Employment applications. that some of the individuals so ex-
cluded possess a disqualifying trait
A request on the part of an employer that cannot be ascertained except by
for information such as ‘‘Date of reference to age. If the employer’s ob-
Birth’’ or ‘‘State Age’’ on an employ- jective in asserting a BFOQ is the goal
ment application form is not, in itself, of public safety, the employer must
a violation of the Act. But because the prove that the challenged practice does
request that an applicant state his age indeed effectuate that goal and that
may tend to deter older applicants or there is no acceptable alternative
otherwise indicate discrimination which would better advance it or equal-
based on age, employment application ly advance it with less discriminatory
forms which request such information impact.
will be closely scrutinized to assure (c) Many State and local govern-
that the request is for a permissible ments have enacted laws or adminis-
purpose and not for purposes proscribed trative regulations which limit em-
by the Act. That the purpose is not one ployment opportunities based on age.
proscribed by the statute should be Unless these laws meet the standards
made known to the applicant, either by for the establishment of a valid bona
a reference on the application form to fide occupational qualification under
the statutory prohibition in language section 4(f)(1) of the Act, they will be
to the following effect: considered in conflict with and effec-
tively superseded by the ADEA.
The Age Discrimination in Employment
Act of 1967 prohibits discrimination on the § 1625.7 Differentiations based on rea-
basis of age with respect to individuals who sonable factors other than age.
are at least 40 years of age,’’ or by other (a) Section 4(f)(1) of the Act provides
means. The term ‘‘employment applica- that
tions,’’ refers to all written inquiries about
employment or applications for employment * * * it shall not be unlawful for an em-
or promotion including, but not limited to, ployer, employment agency, or labor organi-
resumes or other summaries of the appli- zation * * * to take any action otherwise
cant’s background. It relates not only to prohibited under paragraphs (a), (b), (c), or
written preemployment inquiries, but to in- (e) of this section * * * where the differentia-
quiries by employees concerning terms, con- tion is based on reasonable factors other
ditions, or privileges of employment as spec- than age * * *.
ified in section 4 of the Act. (b) No precise and unequivocal deter-
[46 FR 47726, Sept. 29, 1981, as amended at 53 mination can be made as to the scope
ebenthall on PRODPC61 with CFR
FR 5972, Feb. 29, 1988] of the phrase ‘‘differentiation based on
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