EEOC Regulation Extending ADEA Protection to Apprenticeships Upheld by 4th Circuit
by Michael Fox
In 1996, the EEOC changed its course on apprenticeships, including those run by joint labor-management organizations, and held that henceforth they would be subject to the prohibitions of the ADEA. See 29 C.F.R. §1925.21. An apprentice program for the maritime industry, sued by the EEOC has unsuccessfully challenged that regulation. EEOC v. Seafarers International Union (4th Cir. 1/7/05) [pdf].
The case provides an interesting insight into a sometimes overlooked aspect of employment law, the powerful deference given to an agency action. Since the world of employment law is fraught with such alphabet agencies as the NLRB, EEOC and DOL, understanding their power can often be critical in the resolution of a matter. The keystone for understanding judicial limits in reviewing agency's actions is the Supreme Court's opinion in Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Following Chevron, when viewing administrative action, courts generally face two questions: has Congress specifically prohibited the interpretation in question; and if not, is it a permissible interpretation of its organic statute.
Here, the EEOC sued the Union and the apprenticeship program which would only accept applicants up to the age of 35. Such limitation clearly contradicts the Commission's 1996 regulation applying the protections of the ADEA to such programs. The union and the program clearly appreciated the power of Chevron deference as they went to great lengths to argue its inapplicability. Unfortunately, each of their arguments - that the question was one of pure law which should be exempt from Chevron deference, that the agency's inconsistent position over time undermines the case for deference, and that since the EEOC had expansively interpreted the boundaries of its own power it was not entitled to deference, all fell short.
Once deference was applicable, the Court rejected the last substantive argument -- that a close reading of Title VII and the ADEA together made it clear that Congress did not intend to cover labor-management apprenticeship programs with the ADEA prohibitions. As is often the case, instead the Court found that in fact a close reading of the two statutes made it clear that the EEOC was left with the power to take the action that it did.
Although the issue decided is of tremendous importance to those who run apprenticeship programs, and to those individuals who later in life than the traditional apprentice seek to learn a new trade, the opinion itself is interesting as a classic example of how a court engages in a Chevron deference analysis and for the judiciary's limited role in policy decisions. The latter was emphasized by the Court in Chevron itself:
When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges - who have no constituency - have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: "Our Constitution vests such responsibilities in the political branches." TVA v. Hill, 437 U.S. 153, 195 (1978).
The 4th Circuit clearly takes that message to heart. Noting that throughout the proceeding the union and the program had frequently "assailed the wisdom of the EEOC's position", the Court nevertheless concluded:
[Their] arguments may have force. To vindicate them, however, would involve a judicial foray into policies far removed from our mandate under law. In the final analysis, their treatment is for the legislative and executive branches and beyond the province of this court. Congress has already entrusted enforcement of this statute to the EEOC. [cite omitted] Pursuant to this delegation, the agency promulgated a rule, after public comment, that brought age discrimination in apprenticeships within the purview of the Act. We are not authorized to judge the wisdom of this step. We are empowered only to ensure that the agency did not contravene the expressed intent of Congress, nor unreasonably apply its mandate, in reaching the interpretation that this rule reflects. We find that it did neither.
In short, it may well be that it is unwise to apply the ADEA to apprenticeship programs, but the forum for such arguments is in the policy making branches not the courthouse.