As its title suggests, the Age Discrimination in Employment Act (ADEA) generally prohibits age discrimination in employment. However, the ADEA also has several exemptions, including one enacted in 1996 which allows employers to establish mandatory retirement policies with respect to firefighters and law enforcement officers.
The 1996 amendments to the ADEA gave the Department of Health and Human Services (HHS) three years to conduct a study on and develop and issue advisory guidelines for “the administration and use of physical and mental fitness tests to measure ability and competency of law enforcement officers and firefighters to perform the requirements of the jobs of the officers and firefighters.” The exemption also states that when HHS issued regulations on physical and mental fitness tests, any employer with a mandatory retirement age “shall provide to each firefighter or law enforcement officer who has attained such age an annual opportunity to demonstrate physical and mental fitness by passing a test in order to continue employment.” HHS never issued the regulations contemplated by the 1996 amendments.
A group of New York State troopers who were forced to retire under the State’s mandatory retirement age sued the State. Their main argument was that the failure of HHS to issue the regulations deprived public safety employers of the exemption allowing mandatory retirement ages.
A federal court disagreed with the troopers, and upheld their forced retirement. The Court began with the language of the ADEA, which it found lacking in direction: “The ADEA neither explicitly contemplates what effect, if any, HHS’s failure to issue the regulations would have on the legal force of the exemption. Nor do they provide any other helpful textual clues.”
While the language of the statute was unclear, the Court observed that “common sense suggests that Congress’s failure to address this contingency means that it intended for the exemption to have legal force even if HHS failed to issue the regulations. In other words, if Congress intended that the exemption lose its legal force in the event that HHS failed to issue the regulations, it would have so provided in explicit terms.”
On the other hand, the Court also noted that “HHS’s failure to issue the regulations has effectively thwarted the primary purpose of the 1996 amendments – to afford retirement-age firefighters and law enforcement officers an opportunity to avoid mandatory retirement by demonstrating their physical and mental fitness – it seems unlikely that Congress intended that the exemption survive such a contingency. Put another way, despite the fact that Congress did not expressly communicate its intention that the exemption lose its legal force in the event that HHS failed to issue the regulations, HHS’s failure to do so has so fundamentally altered the ADEA that this intent may be inferred.”
Thus, in the Court’s view, there were “two reasonable but conflicting interpretations” of the ADEA. To resolve the issue, the Court turned to the history of the 1996 amendments in Congress.
The Court found particularly instructive the history of the public safety exemption allowing mandatory retirement ages: “In 1986, Congress, recognizing that public safety concerns sometimes outweigh our desire to eliminate age discrimination in employment, amended the ADEA to include the exemption. However, Congress also recognized that allowing mandatory retirement age policies would necessarily lead to the mandatory retirement of firefighters and law enforcement officers who, despite their age, remained perfectly capable of performing their jobs. Therefore, Congress directed the EEOC to conduct a study and propose guidelines concerning the feasibility of fitness examinations by which retirement-age firefighters and law enforcement officers could demonstrate fitness and thereby avoid mandatory retirement.
“EEOC conducted a study but never proposed guidelines. There is no indication that Congress intended that the exemption lose its legal force if EEOC failed to propose guidelines. In fact, the exemption terminated approximately two years later pursuant to the sunset provision, not EEOC’s failure to propose guidelines. Moreover, Congress’s decision not to include a sunset provision in the reinstated version of the exemption in 1996 indicates that it intended that the exemption be permanent. Further, in light of EEOC’s previous failure to propose guidelines within five years, Congress’s decision not to include a sunset provision or other emasculating language indicates that it intended that the exemption have legal force regardless of whether HHS heeded its direction to issue the regulations.”
Since the Court concluded that the failure of HHS to issue regulations on physical and mental fitness tests did not invalidate the exemption allowing mandatory retirement ages, it rejected the troopers’ lawsuit.
Police Benevolent Association of the New York State Troopers, Inc. v. Bennett, 477 F.Supp.2d 534 (N.D.N.Y. 2007).
This article appears in the June 2007 issue