Ask The Lawyer

By Debra Roth

Age discrimination versus mandatory retirement

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Most federal employees have a sense that discrimination based on age is illegal. If that’s true, why do most law enforcement officers and firefighters have a mandatory retirement age, usually 57, and most air traffic controllers face mandatory retirement at age 56? Congress passed laws both prohibiting age discrimination for most federal employees and requiring mandatory retirement based on age for limited occupations.

A review of the rules is helpful to understand how these seemingly contradictory principles can co-exist.
The age discrimination ban is intended to prevent employers from favoring younger employees at the expense of employees older than 40 only because of their age and not because of their job abilities. The law was designed to correct what Congress perceived as discriminatory practices by many employers based only on an unfair stereotype of older workers.

The law against age discrimination is different from other laws prohibiting discrimination. Age discrimination claims can be processed under the traditional equal employment opportunity system, but there is also an alternative to go directly to federal court 30 days after notifying the Equal Employment Opportunity Commission of the claim. EEOC claims must be filed within 45 days of the discriminatory event, and court claims, within 180 days.

One of the major differences between age bias claims and those processed under other anti-discrimination laws such as race and gender is the lack of compensatory damages. Successful age claimants receive only their promotion or a reinstatement and back pay. If claimants can prove that age discrimination was willful, they can receive twice their back pay as liquidated damages. But, compensatory damages covering such things as a loss of health, damage to reputation, humiliation, and other pain and suffering are not a part of the relief.

Also, attorney fees in an age claim are available only for attorney work in court. Thus, a claimant who uses an attorney to navigate only the EEOC process cannot recover fees for that part of the case.
Age cases are also difficult to prove. Simply being older and being mistreated is usually not enough proof of discrimination. To be successful, it helps to have a very significant age and qualification difference between the person claiming discrimination and the replacement. It also helps to be able to point to age-related comments referring to youth and vigor.

In age cases, you have to do more than prove you are more than 40 and subjected to mistreatment. If you are applying for a promotion at age 47 and the successful applicant is 45 or 49, it is unlikely that you will be able to establish an inference of age discrimination.

Some employees are offended and feel discrimination based on age when comments are made about the employee’s retirement plans. But such inquiries from employers standing alone are not sufficient evidence of age discrimination.

Nonetheless, the law is clear that an employer cannot discriminate based on age and cannot require you to leave your job just because you have lived a long time.

The exception is for air traffic controllers, law enforcement and firefighters. The courts have upheld the mandatory retirement laws as statutory exceptions to the age discrimination prohibition.

Congress has specifically said that it wants a young and vigorous workforce in these professions and has authorized a more lucrative retirement system for those who work in the covered field for at least 20 years. To make this system work, Congress specifically authorized agencies to set maximum entry ages for these jobs. For example, an agency can insist that someone becoming a law enforcement officer be no older than 37 when starting his or her career. Based on Merit Systems Protection Board precedent, this maximum starting age does not apply to preference-eligible veterans.

There are a few exceptions to the mandatory retirement age. First an employee must receive at least 60 days’ notice before being forced to retire. Second, most agencies may extend the maximum retirement age to 60 — age 65 at the FBI — for good reasons.

Comments

  1. Steve Says:
    October 30th, 2012 at 12:24 pm

    So the Federal Government says that age discrimination is not allowed, except for when they want to do it. I’ve known 65 year old people who are physically more active and energetic than people half their age. It seems to me that forced retirement should be reserved only for those cases where it is provable the person is no longer capable of performing safely or satisfactorily.

  2. al Says:
    January 2nd, 2013 at 2:35 pm

    I am an architect, 63 years old, and have technical and creative abilities greater than most of my peers. I was laid off a year ago from a firm where I had been head of design because I “earned too much”.
    Since then I have sent my cv out for maybe twenty job openings, all in my wheelhouse, but have never been contacted by the firms,
    I need to work. If I was to change my age to 53, would that be enough to get me fired for cause if I landed a job, or would that be the evidence I need to file an anti-discrimination suit against the new firm?

  3. Bob Says:
    January 29th, 2013 at 5:23 pm

    The federal government decries age discrimination and prohibited hiring practices on the one hand , and then on the other, well just have a look at usajobs! There are countless postings restricted to “recent graduates” and I’ve even seen an entry level attorney postion for the USCIS that is restricted to law school graduates post 2010?!?! How can they get away with what is essentially prima facie evidence of an ADEA violation? What is more, most of the jobs that this discriminatory precursor language are attached to could never support a bona fide occupational qualification defense… Bush league US government, bush league…