AGE DISCRIMINATION
Mandatory retirement ages are routinely enforced by law enforcement agencies in the United States. Individuals who could still perform the minimum essential functions of the job are forced to retire simply because they reached a certain age.
Congress enacted the Age Discrimination in Employment Act (ADEA) of 1967 to protect people against age discrimination in the workplace. The ADEA prohibits employment discrimination against persons over the age of 40. The law was amended in 1974 to cover federal, state, and local governments. The law was again amended in 1986 to prohibit mandatory retirement based on chronological age. Public safety entities argued that this law would have a negative impact on their work forces. Therefore, Congress granted a temporary, seven-year exemption from the provisions of the law for public safety (January 1987 – December 1993). They also tasked the Secretary of Labor and the Equal Employment Opportunity Commission (EEOC) with a study of the issue.
The Penn State Aging Study found that the inability to perform the essential functions of the job was a better predictor than age of when a person should be forced to retire. The report recommends physical performance testing (unspecified) as the alternative. Further, earlier studies found physical fitness to be a twenty-year factor. That is, a fit 60-year-old can perform at the same level as an average 40-year-old. Research suggests that lack of physical activity and the resultant decline of physical fitness are the causes of much of the performance declines seen as early as the fourth decade - not the aging process per se.
In 1996, Congress reinstated the exemption for public safety retroactive to December 31, 1993. Thus, public safety agencies may impose mandatory retirement ages, under certain conditions, provided it is “pursuant to a bona fide hiring or retirement plan…” 29 U.S.C. SS 623(j)(2). The 1996 amendment also required the secretary of Health and Human Services, in conjunction with the National Institutes for Health to develop tests and guidelines for public safety within four years. The expectation was that public safety officers would have a test to take and if passed, would be exempt from the retirement mandate. (See Correa-Ruiz, 573 F.3d at 11-12) The mandate was never funded and as of this writing, no guidance exists.
Public safety agencies under certain circumstances are exempt from the ADEA. An agency may impose mandatory retirement if the standard was in place as of March 3, 1983, or if the age limit was enacted after the 1996 amendment. In keeping with the intent of the 1996 Amendment, all individuals should be required to demonstrate the ability to perform the minimum essential functions of the job. Agencies can enforce a validated physical readiness standard regardless of the individual’s age.