Illinois Credit Union League

P.O. Box 3107

Naperville, Illinois 60566-7107

630 983-3400

May 6, 2008

***[VIA E-MAIL]{.underline}***

***www.regulations.gov***

Stephen L. Llewellyn

Executive Officer, Executive Secretariat

Equal Employment Opportunity Commission

1801 L Street, NW

Washington D.C. 20507

> RE: ***Illinois Credit Union League---Comments on Proposed Rulemaking
> to 29 C.F.R. §1625.7(d)-(e)***

Dear Mr. Llewellyn:

The Illinois Credit Union League ("ICUL") is pleased to respond on
behalf of its 400 member state and federal credit unions to the Equal
Employment Opportunity Commission's ("EEOC") proposal to amend 29 C.F.R.
§1625.7(d)-(e) to address the incorporation of disparate impact claims
and corresponding burdens of proof into the regulations interpreting the
Age Discrimination in Employment Act ("ADEA"). The remainder of this
correspondence addresses our response.

The EEOC's proposed rulemaking is in response to the United States
Supreme Court decision in *Smith v. City of Jackson,* 554 U.S. 228
(2005) that disparate impact claims are actionable under the ADEA. As
proposed, §1625.7(d)-(e) incorporates the burdens of proof for disparate
impact cases. This is an inappropriate province of the EEOC and a
regulation. Burdens of proof relate to how a complaint will be proven in
court, which is a judicial province, not a regulatory one. Deference to
agency interpretations does not extend to questions of judicial review.
*See*, *Office of Workers' Comp. Programs v. Greenwich Collieries*, 512
U.S. 267 (1994) (Administrative Procedures Act does not provide
deference to an agency's allocation of burdens of proof). We do not
believe the EEOC should address the burdens of proof in the regulation
and any reference properly is stricken.

The reluctance to allow administrative agencies to incorporate burdens
of proof in regulations is self-evident especially as is here, because
the EEOC has misstated the burdens of proof. As proposed, §1625.7(e)
provides an employer bears the burden of proving that a reasonable
factor other than age justified the employment decision. In *Wards Cove
Packing Co., Inc. v. Antonio,* 490 U.S. 642 (1989), the United States
Supreme Court identified the burdens of persuasion and production in a
disparate impact case. To establish a prima facie case of disparate
impact in an age suit, a plaintiff must demonstrate the existence of a
significant statistical disparity and isolate and identify the
responsible employment practice. If proven, the burden shifts to the
employer to **produce** evidence that a reasonable factor other than age
caused the disparity. An employer bears the **burden of production**.
The plaintiff bears the **burden of proof** at all times. A plaintiff's
burden is not satisfied once s/he establishes a prima facie case.
Accordingly, if it is determined that the EEOC may address burdens of
proof in the regulation, §1625.7(e) should be redrafted to appropriately
articulate the burdens of proof.

The EEOC requests comments on whether the regulations should define
"reasonable factors other than age". As stated above, this province is
properly the subject of the judiciary and case law, not an
administrative agency and regulations. If the definition properly is the
subject of regulation, the EEOC should consult with case law for the
appropriate determination of what constitutes a reasonable factor other
than age. For example, the courts have held reasonable factors other
than age include employment decisions based upon seniority, corporate
reorganization, performance evaluations, disciplinary documents,
retention and recruiting decisions based upon physical skills and
performance. *Pippin v. Burlington Resources Oil & Gas, Co*. 440 F.3d
1186, 1201 (10th Cir. 2006) Additionally, physical inability to perform
a job, basing compensation on years of employment and considering an
employee's eligibility for Medicare when providing health benefits to
retirees are reasonable factors other than age. The EEOC should draft
factors which are relevant in the determination of what constitutes a
reasonable factor other than age.

The EEOC requests comments on whether the regulations should refer to
tort standards, such as negligence and reasonable standards of care. The
EEOC should not rely on tort law. The regulations should rely upon the
reasonable business standards, embodied in employment law.

We appreciate the opportunity to provide comments. If you have any
questions about this Comment Letter, please feel free to contact me.

Very truly yours,

ILLINOIS CREDIT UNION LEAGUE

Lynn W. Esp

Assistant General Counsel

LWE:ko

cc: Legislative Committee

Regulatory Committee

Don Edwards

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