The Age Discrimination in Employment Act (ADEA): Overview and Current Legal Developments
CRS Report for Congress
The Age Discrimination in Employment Act
(ADEA): Overview and Current Legal
Updated March 13, 2000
Kimberly D. Jones
American Law Division
Congressional Research Service ˜ The Library of Congress
This report discusses the Age Discrimination in Employment Act (ADEA) and current legal
and legislative developments. The ADEA prevents employment discrimination against persons
over the age 40. The ADEA makes it unlawful for an employer “to fail or refuse to hire or
to discharge any individual or otherwise discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such individual’s
age.” It applies, not only in hiring, discharge and promotion, but also prohibits discrimination
in employee benefit plans such as health coverage and pensions. The Equal Employment
Opportunity Commission (EEOC) is responsible for enforcing the provisions of the ADEA.
Abstract begins here.
The Age Discrimination in Employment Act (ADEA):
Overview and Current Legal Developments
This report discusses the Age Discrimination in Employment Act (ADEA) and
current legal and legislative developments. The ADEA, which prevents employment
discrimination against persons over the age of 40, was enacted "to promote
employment of older persons based on their ability rather than age; to prohibit
arbitrary age discrimination in employment; [and] to help employers and workers find
ways of meeting problems arising from the impact of age on employment." It applies
to employers, labor organizations, and employment agencies. Workers 40 or older
constitute 45 percent of the total labor force of the United States. The group consists
mostly of baby-boomers, or those born between the years 1946 and 1957. This fact,
coupled with the increasing number of companies downsizing their workforce, has led
to a dramatic increase in the number of ADEA claims.
The ADEA makes it unlawful for an employer "to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such
individual's age." It applies, not only in hiring, discharge and promotion, but also
prohibits discrimination in employee benefit plans such as health coverage and
pensions. The Equal Employment Opportunity Commission (EEOC) is responsible
for enforcing the provisions of the ADEA.
The ADEA does not prohibit the compulsory retirement of a bona fide executive
or high policy-maker who has reached age 65 and is entitled to a nonforfeitable annual
retirement benefit of at least $44,000. The Age Discrimination in Employment
Amendments of 1996 reinstated the exemption for certain bona fide hiring and
retirement plans applicable to state and local firefighters and law enforcement officers.
The ADEA Amendments of 1996 also require the Secretary of Health and Human
Services to develop tests to gauge the ability of firefighters and law enforcement
officials to accomplish their jobs. The Higher Education Act of 1998 allows
institutions of higher education to offer age-based incentives to encourage tenured
employees to voluntarily retire without violating the ADEA.
An employer under the ADEA is a "person engaged in an industry affecting
commerce who has twenty or more employees for each working day in each of twenty
or more calendar weeks in the current or preceding calendar year." A labor
organization is covered by the ADEA if it is "engaged in an industry affecting
commerce, any agent of such an organization, and includes any organization of any
kind, any agency, or employee representation committee, group, association, or plan
. . . dealing with employers concerning grievances, labor disputes, wages, rates of pay,
hours, or other terms or conditions of employment." An employment agency and its
agents are subject to the ADEA if the agency "regularly undertakes with or without
compensation" the procurement of employees for an employer, other than an agency
of the United States. The ADEA covers congressional and most federal employees.
Background ................................................ 1
Current ADEA Provisions.....................................2
Who Is Covered under the ADEA...............................3
Filing an ADEA Claim........................................5
Employer Defenses to the ADEA................................9
Remedies ................................................. 14
APPENDIX ................................................... 16
Amendments to the ADEA...................................16
The Age Discrimination in Employment Act
(ADEA): Overview and Current Legal
The Age Discrimination in Employment Act (ADEA)1 of 1967, as amended,
seeks to address the longstanding problem of age discrimination in the work-place.2
The ADEA, which prevents employment discrimination against persons over the age
of 40, was enacted "to promote employment of older persons based on their ability
rather than age; to prohibit arbitrary age discrimination in employment; [and] to help
employers and workers find ways of meeting problems arising from the impact of age
on employment."3 The ADEA makes it unlawful for an employer "to fail or refuse to
hire or to discharge any individual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's age."4 It applies, not only in hiring, discharge and
promotion, but also prohibits discrimination in employee benefit plans such as health
coverage and pensions. In addition to employers, the ADEA also applies to labor
organizations and employment agencies.
Age discrimination in employment is a growing issue as the average American
can expect to live until almost 80 years of age.5 By 2004, the entire baby boomer
1 29 U.S.C.A. §§ 621-634 (West 1985 & Supp. 1996).
2 Employees seeking a remedy for age discrimination in employment also have the option of
a constitutional claim. The Equal Protection Clause states in part, "[n]o state shall . . . deny
to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend.
XIV, § 1. Before an equal protection argument could be made, the plaintiffs would have to
show state action. In Gregory v. Ashcroft, 501 U.S. 452 (1991), the U.S. Supreme Court
considered a Fourteenth Amendment Equal Protection Clause challenge to a state mandatory
retirement law. In Ashcroft, the plaintiffs were Missouri state judges required to retire at the
age of 70 by state law. The Court reviewed the judges' claim under the rational basis test,
noting that "age is not a suspect classification under the Equal Protection Clause" and the
plaintiffs did not "have a fundamental interest in serving as judges." Ashcroft, 501 U.S. at
470. Ultimately, the Court held that the voters of Missouri had a legitimate and rational basis
for requiring retirement of their state judges to ensure the competency and efficacy of their
3 29 U.S.C.A. § 621.
4 29 U.S.C.A. § 623.
5 Steven D. Kaye, Mary Lord, Pamela Sherrid, Stop Working? Not boomers: The Me
generation, or those born between 1946 and 1964, will be covered by the ADEA.6
Currently, baby boomers make up 45 percent, or 60 million of 134 million workers
in the American labor force.7 Approximately, 17,000 age discrimination complaints8
were filed annually between 1991 and 1995.
The issue of age discrimination has concerned Congress for several years. Prior
to the ADEA, section 715 of the Civil Rights Act of 1964, required the Secretary of9
Labor to study the issue of age discrimination in employment. The resulting report
surmised that a clear-cut federal policy was needed to address age discrimination.
President Lyndon B. Johnson suggested the Age Discrimination in Employment Act
in his Older Americans message delivered in early 1967.
After passage, the ADEA went through a series of amendments to strengthen
and expand its coverage of older employees. Originally, the ADEA only covered
employees between the ages of 40 and 65. Eventually the upper age limit was
extended to age 70, and then eliminated altogether. In 1978, as part of the
Reorganization Plan No. 1, enforcement authority of the ADEA was transferred from
the Department of Labor to the Equal Employment Opportunity Commission
Current ADEA Provisions
The ADEA prevents employers,11 employment agencies12 and labor
organizations13 from discriminating because of age in the hiring, termination,
placement, representation or any other manner against employees 40 years of age and
older. It also prevents retaliation against employees for filing or participating in an14
Generation May Not Know It Yet, But Many Will Need a Paycheck into their 70s, U.S. News
& World Report, June 12, 1995.
6 Kirstin Downey Grimsley, Next for Boomers: Battles Against Age Bias?, Wash. Post. Feb.
9 P.L. 88-352, 78 Stat. 241, 265 (1964).
10 Reorg. Plan No. 1 of 1978, 92 Stat. 3781 (1978). See also 29 U.S.C.A. § 626(a).
11 29 U.S.C.A. § 623(a).
12 29 U.S.C.A. § 623(b).
13 29 U.S.C.A. § 623(c).
14 29 U.S.C.A. § 623(d). The U.S. Supreme Court, in Robinson v. Shell Oil Co., 519 U.S.
____, 117 S. Ct. 843 (1997), extended the protection from retaliation provided to employees
who file or participate in discrimination suits. The lower court had held that such protection
applied only to current employees, not past employees. The Court refused to so limit the
interpretation of "employee," concluding that "employee" as defined in Title VII also applies
The ADEA also prohibits age-biased advertisements.15 According to the EEOC's
regulations, want ads that contain phrases such as, "age 25 to 35," "young", "college
student", "recent college graduate","boy", "girl," or similar terms are prohibited under16
the Act, unless an exception applies. Even phrases that favor some members of the
class, but discriminate against others is prohibited, e.g., "age 40 to 50", "age over 65",
"retired person", or "supplement your pension."17 On the other hand, the request for
the age or date of birth of an applicant on an employment application or use of the18
phrase "state age" on a want ad is not necessarily a violation of the Act. It is not per
se a violation because there may be legitimate reasons for requesting the age or date
of birth of an applicant. But the EEOC will "closely [scrutinize the application] to
assure that the request is for a permissible purpose and not for purposes proscribed19
by the Act."
Who Is Covered under the ADEA
The ADEA covers employees20 forty years and older.21 However, the ADEA
does not prohibit the compulsory retirement of a bona fide executive or high
policymaker who has reached age 65 and is entitled to a nonforfeitable annual22
retirement benefit of at least $44,000. The Age Discrimination in Employment
Amendments of 1996 reinstated the exemption for certain bona fide hiring and
retirement plans applicable to state and local firefighters and law enforcement
officers.23 The ADEA Amendments of 1996 also required the Secretary of Health and
to former employees. Since the ADEA is closely modeled after Title VII of the Civil Rights
Act, it will apply to those former employees who filed ADEA claims.
15 29 U.S.C.A. § 623(e).
16 29 C.F.R. § 1625.4 (1996).
17 29 C.F.R. § 1625.4(a).
18 29 C.F.R. § 1625.4(b), 1625.5.
19 29 C.F.R. § 1625.5.
20 According to 29 U.S.C.A. § 630(f), an "employee" is defined as "an individual employed
by any employer . . ." Excluded from the definition of employee are state elected officials or
an appointee of such person. However, state employees covered by civil service laws, are
considered employees, as well as American citizens working for American employers abroad.
Section 633a of the ADEA extends its application to Federal Government employees. The
Congressional Accountability Act of 1995, 2 U.S.C.A. § 1301-1438 (West 1985 & Supp.
1997), extended the rights and protections of the ADEA to Congressional employees. In
Gregory v. Ashcroft, 501 U.S. 452 (1991), the Court upheld a Missouri statute that required
mandatory retirement of judges at age 70. The majority found, after an analysis of the
definition of an employee and its exclusions, that state judges fall within the exception to the
ADEA regarding "appointee on the policymaking level." Id. at 467.
21 29 U.S.C.A. § 631(a).
22 29 U.S.C.A. § 631(c)(1).
23 Omnibus Consolidated Appropriations Act of 1997, P.L. 104-208, 110 Stat. 3009 (1996).
Human Services to develop tests to gauge the ability of firefighters and law
enforcement officials to accomplish their jobs.24
The Higher Education Amendments of 1998(HEA) added a new section to the
ADEA regarding voluntary retirement incentive plans for tenured faculty of higher
education institutions. The HEA of 1998 allows institutions of higher education to
offer tenured employees who become eligible to retire "supplemental benefits" to
encourage them to voluntarily retire. Supplemental benefits are those benefits above
and beyond retirement or severance benefits generally offered to employees of the
institution. If certain requirements are met, supplemental benefits may be reduced or
eliminated on the basis of age without violating the ADEA. However, the ADEA
continues to prevent an institution from reducing or ceasing non-supplemental benefits
on the basis of age. Furthermore, the amendment does not apply to causes of action
arising before the October 1, 1998 enactment of the HEA of 1998.
An employer under the ADEA is a "person engaged in an industry affecting
commerce who has twenty or more employees for each working day in each of twenty
or more calendar weeks in the current or preceding calendar year."25 It is unlawful for
an employer "to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's age."26 The term
"employer" includes agents, states, their political subdivisions and accompanying
agents, but excludes the United States or any corporation wholly owned by the United27
States Government. However, the United States Supreme Court in Kimel v. Florida
Board of Regents held that state employees could not bring suit against the state
The ADEA Amendments of 1996 state that an employer is not in violation of the Act "if the
individual was discharged after the date described in such section, and the individual has
(A) the age of hiring or retirement, respectively, in effect under applicable State or local law
on March 3, 1993; or
(B)(i) if the individual was not hired, the age of hiring in effect on the date of such failure or
refusal to hire under applicable State or local law enacted after the date of enactment of the
Age Discrimination in Employment Amendments of 1996; or
(ii) if applicable State or local law was enacted after the date of enactment of the Age
Discrimination in Employment Amendments of 1996 and the individual was discharged, the
(I) the age of retirement in effect on the date of such discharge under such law; and
(II) age 55;"
25 29 U.S.C.A. § 630(b). An "industry affecting commerce" is defined as "any activity,
business, or industry in commerce or in which a labor dispute would hinder or obstruct
commerce or the free flow of commerce and includes any activity or industry `affecting
commerce' within the meaning of the Labor-Management Reporting and Disclosure Act of
26 29 U.S.C.A. § 623.
27 29 U.S.C.A. § 630.
under the ADEA.28 The Court reasoned that states have sovereign immunity and are
immune from suit unless the state consents or an exception applies. While, the Kimel
decision effectively eliminated the ability of state employees to bring suit under the
ADEA, the Act may be enforced against states by the EEOC.
In addition, the ADEA covers employees in certain military departments,
executive agencies, the United States Postal Service, the Postal Rate Commission,
certain District of Columbia employees, Federal Government legislative and judicial
employees in competitive service and employees in the Library of Congress.
Congressional employees of the House and Senate are covered by the ADEA
pursuant to the Congressional Accountability Act of 1995.29
A labor organization is covered by the ADEA if it is "engaged in an industry
affecting commerce, and any agent of such an organization, and includes any
organization of any kind, any agency, or employee representation committee, group,
association, or plan . . . dealing with employers concerning grievances, labor disputes,
wages, rates of pay, hours, or other terms or conditions of employment."30 The
ADEA defines a labor organization engaged in an industry affecting commerce as one
that has a hiring hall or is a certified employee representative, or if not certified, holds31
itself out as the employee's bargaining representative.
An employment agency and its agent are subject to the ADEA if they "regularly
undertake with or without compensation" the procurement of employees for an32
employer, other than an agency of the United States.
Filing an ADEA Claim
The Equal Employment Opportunity Commission (EEOC) is responsible for
enforcing the provisions of the ADEA.33 The Act requires the EEOC, after receiving
a charge of unlawful discrimination, to seek compliance with the Act through methods34
such as conciliation, conference, or persuasion before instituting legal proceedings.
A claimant under the ADEA may bring a civil action in state or federal court and seek
28 139 F.3d 1426 (11th Cir. 1998), reh’g denied, 157 F.3d 908 (11th Cir. 1998), cert. granted,
796, slip op. (U.S. Jan. 11, 2000). See CRS Report RL30364, Legal Issues Affecting the
Right of State Employees to Bring Suit Under the Age Discrimination in Employment Act and
Other Federal Labor Laws, by Kimberly D. Jones.
29 Certain federal employees are covered under Section 633a and Congressional employees are
covered under the Congressional Accountability Act of 1995. 2 U.S.C.A. §1301.
30 29 U.S.C.A. § 630(d).
31 29 U.S.C.A. § 630(e).
32 29 U.S.C.A. § 630.
33 29 U.S.C.A. § 626(a). The Department of Labor was originally responsible for enforcement
of the ADEA. The authority was transferred to the EEOC in 1978 pursuant to Reorg. Plan
No. 1 of 1978, 92 Stat. 3781 (1978).
34 29 U.S.C.A. § 626(b).
a jury trial, unless the EEOC brings suit on behalf of the aggrieved, in which case his
right to bring suit yields to the EEOC.35
No civil action may be filed until 60 days after "a charge alleging unlawful
discrimination has been filed with the [EEOC]."36 The timeline for filing an ADEA
charge varies depending on where the alleged violation occurred. Generally, a
grievant must file a complaint with the EEOC within 180 days of the alleged
discriminatory act. However, if the state where the alleged unlawful practice took
place has an age discrimination law and a corresponding enforcement agency, then the
time by which a grievant must file with the EEOC is extended to within 300 days of
the alleged unlawful practice.37 A charge must be filed with the EEOC within 30 days38
upon notification that the state agency has terminated its proceedings. The sixty-day
deferral period for filing a civil suit also applies to charges filed with a state agency,
unless the state agency proceedings are earlier terminated. Due to the 60 day deferral
period, a complainant must file with the corresponding state or local agency within
240 days of the alleged discriminatory act to ensure that the charge will be filed with
the EEOC within the 300-day limit.39
In non-deferral states, or states without a corresponding enforcement agency,
the grievant must file a claim with the EEOC within 180 days of the alleged unlawful
practice. No civil action may be filed until 60 days after filing a charge with the
EEOC.40 However, if the EEOC terminates or dismisses the charge, even within the
60 day period, then the grievant may file a civil action within 90 days of receipt of
When bringing a civil case, there are two types of discrimination claims,
disparate treatment and disparate impact. Disparate treatment occurs when an
employer intentionally discriminates against an employee or enacts a policy with the
intent to treat or affect the employee differently from others because of the employee's
35 Lehman v. Nakshian, 453 U.S. 156 (1981). The Court held that ADEA did not grant the
right to a jury trial to an employee suing the Federal Government.
36 29 U.S.C.A. § 626(d).
37 29 U.S.C.A. § 626(d).
38 29 U.S.C.A. § 633(b). The U.S. Supreme Court, in Oscar Mayer & Co. v. Evans, 441 U.S.
750 (1979), held that the ADEA requirement of pursuing a remedy under state law is
mandatory, not optional. However, the Court also held that this provision is satisfied by filing
with the applicable state agency and that exhaustion of state remedies is not needed before
filing a complaint with the EEOC.
39 Mohasco Corp. v. Silver, 447 U.S. 807 (1980). A complaint filed with a state or local
agency after 240 days may still be timely if the state or local agency terminates its proceedings
before 300 days.
40 29 U.S.C.A. § 626(d). The statute of limitations for civil actions is two years from the date
the cause of action accrued, or, in the case of willful violations, three years from the date the
cause accrued. 29 U.S.C.A. § 255 (West 1985 & Supp. 1996). However, the statute of
limitations is tolled when the EEOC is seeking to resolve claims through conciliation and
conference. However, the statute of limitations will not be tolled beyond one year. 29
U.S.C.A. § 626(e)(2).
age.41 Disparate impact occurs when the employer's acts or policies are facially
neutral, but have an adverse impact on a class of employees and are not justified as
job related and consistent with business necessity. According to the Court in Hazen
Paper Co. v Biggins, the ADEA explicitly allows disparate treatment claims, but the
Court has yet to decide whether an employee may recover under the disparate impact
theory.42 This has resulted in confusion for litigants, and courts alike, as some federal
courts of appeals allow disparate impact claims, while others do not.43
Since the ADEA was modeled after Title VII, courts look to Title VII decisions
for guidance on adjudicating ADEA claims. However, the unique protections of the
ADEA have not always fit neatly into the Title VII framework. In cases where the
plaintiff is alleging disparate treatment and there is no direct evidence of
discrimination, courts refer to the Title VII burden of proof framework established by
the U.S. Supreme Court in McDonnell Douglas v. Green,44 and Texas Dept. of
Community Affairs v. Burdine.45 The burden of proof requires the plaintiff to establish
a prima facie case. Once the plaintiff, by a preponderance of the evidence, proves a
prima facie case then the burden of production shifts to the employer, "to articulate
41 In proving disparate treatment based on age the plaintiff can show that age was a motivating
factor in the employer's decision. The plaintiff does not have to show that it was the onlyth
factor. Kralman v. Illinois Dept. of Veteran's Affairs, 23 F.3d 150 (7 Cir. 1994), cert.
denied, 115 S. Ct. 359, 130 L.Ed.2d 313 (1994).
42 507 U.S. 604 (1993). The majority states: "[t]he disparate treatment theory is of course
available under the ADEA, as the language of that statute makes clear. . . . By contrast, we
have never decided whether a disparate impact theory of liability is available under the
ADEA." Id. at 609-610. The facts of Biggins reflect a growing concern among older workers
who are close to the vesting of their pensions. The plaintiff, Walter Biggins, was fired weeks
before he was scheduled to vest under his employer's pension plan. The plan allowed vesting
after ten years of service. Although the Court held that firing an employee to prevent vesting
is actionable under the Employees Retirement Income Security Act (ERISA), 29 U.S.C.A. §
1001 et seq. (West 1985 & Supp. 1996), such firing "would not constitute discriminatory
treatment on the basis of age." Id. at 612. However, the Court did not dismiss the possibility
of pension status being used as a proxy for age. The Court was not faced with a situation
where vesting was based on age rather than length of service. If vesting were based on an
employee's age, then firing an employee to avoid vesting could possibly result in liability under
both the ADEA and ERISA. Id. at 613.
43 The Courts of Appeals for the Eighth Circuit and the D.C. Circuit have allowed disparate
impact claims. Smith v. City of Des Moines, Iowa, 99 F.3d 1466 (8th Cir. 1996); Koger v.
Reno, 98 F.3d 631 (D.C. Cir. 1996). However, the Third, Seventh and Tenth Circuit Courts
of Appeals have not. DiBiase v. Smith Kline Beecham Corp., 48 F.3d 719 (3d Cir. 1995),th
cert. denied, 116 S. Ct. 306 (1995); Gehring v. Case Corp., 43 F.3d 340 (7 Cir. 1994), cert.
denied, Gehring v. J.I. Case Corp., 115 S. Ct. 2612 (1995); Furr v. Seagate Tech., 82 F.3dth
980 (10 Cir. 1996), cert. denied, Doan v. Seagate Tech., 117 S. Ct. 684 (1997). See also
Frances A. McMorris, Age-Bias Suits May Become Harder to Prove, Wall St.J., Feb. 20,
44 411 U.S. 792 (1973).
45 450 U.S. 248 (1981).
some legitimate, nondiscriminatory reason for the employee's rejection."46 If the
employer rebuts the employee's prima facie case, the employee may still prevail if he
can show that the employer's defense is merely a pretext and that the employer's47
behavior was actually motivated by discrimination. While the burden of production
shifts to the employer to rebut the employee's prima facie case, the burden of
persuasion remains on the plaintiff at all times.48
The confusion occurs when defining what constitutes a prima facie case under
the ADEA. According to McDonnell Douglas (a Title VII case), a prima facie case
is made when the plaintiff shows: "(1) that he belongs to a racial minority; (2) that he
applied and was qualified for a job for which the employer was seeking applicants; (3)
that, despite his qualifications, he was rejected; and (4) that, after his rejection, the
position remained open and the employer continued to seek applicants from persons
of complainant's qualifications."49
The Supreme Court has attempted to clarify the prima facie case applicable to
the ADEA in its decisions in Trans World Airlines, Inc. v. Thurston,50 and O'Connor
v. Consolidated Coin Caterers Corp.51 In Thurston, the Court held that the prima
facie elements of McDonnell Douglas are inapplicable where the plaintiff produces52
evidence of direct discrimination. In Thurston, the Court upon finding direct
evidence of discrimination, then considered the employer's defenses. While not
explicitly stated in Thurston, it appears that even after evidence of direct
discrimination, the burden of production shifts to the employer to articulate a
legitimate reason for the discriminatory behavior. If the employer succeeds, the
employee still has an opportunity to prove the employer's proffered reason is merely
a pretext for discrimination. Again, the burden of persuasion remains at all times on
46 McDonnell Douglas, 411 U.S. at 802.
47 St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). In Hicks, the Supreme Court
revisited the burden of proof scheme established by McDonnell Douglas and Burdine. Justice
Scalia, writing for the majority, held that it is not enough for the plaintiff to show that the
employer's proffered reason was false. The plaintiff must show that the employer's proffered
reason is both false and that the employer's actions were motivated by discrimination.
48 Burdine, 450 U.S. at 255-256.
49 McDonnell Douglas, 411 U.S. at 802.
50 469 U.S. 400 (1985).
51 116 S. Ct. 1307 (1996).
52 The Court agreed with the court of appeals stating:
TWA contends that the respondents failed to make out a prima facie case of age
discrimination under McDonnell Douglas v. Green, 411 U.S. 792 (1973), because at the time
they were retired, no flight engineer vacancies existed. This argument fails, for the McDonnell
Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination. .
. . The shifting burdens of proof set forth in McDonnell Douglas are designed to assure that
the `plaintiff [has] his day in court despite the unavailability of direct evidence'. Id. at 121st
(quoting Loeb v. Textron, Inc., 600 F.2d 1003 (1 Cir. 1979)).
In Consolidated Coin, the Court held that a prima facie case is not made out by
simply showing that an employee was replaced by someone outside of the class. The
plaintiff must show that he was replaced because of his age.53 The Court evaluated
whether the prima facie elements evinced by the Fourth Circuit Court of Appeals were
required to establish a prima facie case. The Fourth Circuit held that a prima facie
case is established under the ADEA when the plaintiff shows that: "(1) he was in the
age group protected by the ADEA; (2) he was discharged or demoted; (3) at the time
of his discharge or demotion, he was performing his job at a level that met his
employer's legitimate expectations; and (4) following his discharge or demotion, he
was replaced by someone of comparable qualifications outside of the protected
class."54 The Court held that the fourth prong, replacement by someone outside of the
class, is not the only manner in which a plaintiff can show a prima facie case under the
ADEA.55 A violation can be shown even if the person was replaced by someone
within the protected class. For example, replacing a 76 year old with a 45 year old
may be a violation of the ADEA, if the person was replaced because of her age.
Employer Defenses to the ADEA
The ADEA provides several defenses for employers. The available defenses
strike a balance between the ability of employers to conduct their business and the
interest of the government in eliminating age discrimination in employment.
The ADEA is not violated if the action taken against an employee is due to a
"bona fide occupational qualification [BFOQ] reasonably necessary to the normal
operation of the particular business."56 According to the Court in Thurston, in order
to be considered a valid BFOQ "the age-based discrimination must relate to a
53 O'Connor v. Consolidated Coin Caterers Corp., 116 S. Ct. 1307 (1996).
54 116 S. Ct. 1307, 1309 (1996).
55 Justice Scalia, writing for the majority states:
As the very name `prima facie case' suggests, there must be at least a logical connection
between each element of the prima facie case and the illegal discrimination for which it
establishes a `legally mandatory' rebuttable presumption. . . . The element of replacement by
someone under 40 fails this requirement. The discrimination prohibited by the ADEA is
discrimination `because of [an] individual's age.'" Consolidated Coin, 116 S. Ct. at 1310
(quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, n.7 (1981)).
56 29 U.S.C.A. § 623(f)(1). According to the Supreme Court in Western Air Lines Inc. v.
Criswell, 472 U.S. 400 (1984), the BFOQ must be more than "convenient" or "reasonable",
but must be "`reasonably necessary . . . to the particular business.'". Id. at 414. The employer
could prove a BFOQ defense of an age-based qualification due to safety concerns based on
either of two ways. First the employer could show that it had factual basis for believing that
persons over a certain age would be unable to perform the job safely. In the alternative, the
employer could show that "age was a legitimate proxy for the safety-related job qualifications
by proving that it is `impossible or highly impractical' to deal with the older employees on an
individualized basis." Id.
`particular business.'"57 The particular business referred to "is the job from which the
protected individual is excluded."58 In Johnson v. Mayor of City Council of
Baltimore, the Court held that Baltimore's reliance on the Federal Government's
mandatory retirement provision for Federal firefighters was not a BFOQ which
Baltimore could rely on to require mandatory retirement of city firefighters under the
age of 70.59 The Court in Western Air Lines, Inc., v. Criswell, upheld a jury
instruction given by the Fifth Circuit Court of Appeals regarding the BFOQ defense.60
The court recognized that the ADEA requires that age qualifications be
something more than `convenient' or `reasonable'; they must be `reasonably
necessary . . . to the particular business,' and this is only so when the employer is
compelled to rely on age as a proxy for the safety-related job qualifications
validated in the first inquiry. This showing could be made in two ways. The
employer could establish that it `had reasonable cause to believe, that is, factual
basis for believing, that all or substantially all [persons over the age qualifications]
would be unable to perform safely and efficiently the duties of the job involved.'
Alternatively, the employer could establish that age was a legitimate proxy
for the safety-related job qualifications by proving that it is `impossible or highly
impractical' to deal with the older employees on an individualized basis. `One
method by which the employer can carry this burden is to establish that some
members of the discriminated-against class possess a trait precluding safe and
efficient job performance that cannot be ascertained by means other than61
knowledge of the applicant's membership in the class.'
The Older Americans Act Amendments provided an exemption to employers
where compliance with the ADEA with regard to an employee based in a foreign
country would violate the laws of that country.62 The ADEA does not apply where
the company is not controlled by an American employer.63 The Act provides courts
with a four prong analysis to determine whether a company is under an American
employer's control. The determination is based on the interrelation of operations,
common management, centralized control of labor relations and common ownership
or financial control between the employer and the corporation.64
The ADEA is also not violated when the action taken is pursuant to a bona fide
seniority system or employee benefit plan.65 The seniority system may not require or
57 Thurston, 469 U.S. at 122.
59 472 U.S. 353 (1984).
60 Id. at 414.
61 Id. at 414-15.(quoting Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228
(5th Cir. 1969)).
62 29 U.S.C.A. § 623(f)(1).
63 29 U.S.C.A. § 623(h)(2).
64 29 U.S.C.A. § 623(h)(3)(A)-(D).
65 29 U.S.C.A. § 623(f)(2). Bona fide is defined as a system or plan that is not being used to
permit mandatory retirement of employees because of age.66 A bona fide employee
benefit plan must satisfy the "equal cost equal benefit" principle which provides parity
between the amount employers spend on benefits for older and younger workers.67 If
it costs more to provide the same benefit to the protected class, the employer has the
option of paying the same amount for benefits of the protected class as it does for
employees outside of the protected class. This is so, even if it results in workers in the
protected class receiving fewer benefits. However, employers may not pay less for
benefits of members of the protected class than they pay for younger employees.
Another exemption to the ADEA is if "the differentiation is based on reasonable
factors other than age."68 Of course, a defense to the ADEA is that the employee was69
discharged or disciplined for good cause, not age.
An employee may waive his rights under the ADEA, if such waiver was knowing
and voluntary.70 A knowing and voluntary waiver is defined in the act by a71
consideration of factors. A waiver given in settlement of a charge filed with the
evade the purposes of the Act.
66 29 U.S.C.A. § 623(f)(2)(A). The ADEA explicitly allows voluntary retirement as an
incentive of early retirement plans. 20 U.S.C.A. § 623(f)(2)(B)(ii). The ADEA does exempt
from its provisions bona fide executives, high policy-makers and state and local firefighters
and law enforcement officers.
67 29 U.S.C.A. § 623(f)(2)(B).
68 29 U.S.C.A. § 623(f)(1).
69 29 U.S.C.A. § 623(f)(3). In McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995),
the Court considered whether after-acquired evidence of employee misconduct would bar an
ADEA claim. The Court, held that after-acquired evidence, which if discovered would have
led to the employee's discharge, does not bar an ADEA claim, but may reduce the amount of
70 29 U.S.C.A. § 626(f).
71 29 U.S.C.A. § 626(f)(1). A waiver is knowing and voluntary if:
(A) the waiver is part of an agreement between the individual and the employer that is written
in a manner calculated to be understood by such individual, or by the average individual
eligible to participate;
(B) the waiver specifically refers to rights or claims arising under this chapter;
(C) the individual does not waive rights of claims that may arise after the date the waiver is
(D) the individual waives rights or claims only in exchange for consideration in addition to
anything of value to which the individual already is entitled;
(E) the individual is advised in writing to consult with an attorney prior to executing the
(F)(i) the individual is given a period of at least 21 days within which to consider the
(ii) if a waiver is requested in connection with an exit incentive or other employment
termination program offered to a group or class of employees, the individual is given a period
of at least 45 days within which to consider the agreement;
EEOC or in a civil action is not considered knowing and voluntary unless the general
requirements for a waiver are met and the individual has a reasonable opportunity to
consider the settlement.72 The person asserting validity of the waiver has the burden
of proving that the waiver was knowing and voluntary. The waiver provision is
inapplicable to the EEOC, and an employer may not interfere with an employee's
participation with the EEOC in investigating or pursuing a claim of alleged unlawful
practices. In Oubre v. Entergy Operations, Inc., the Supreme Court considered
whether an employee had to return money she received as part of a severance
agreement before bringing suit under the ADEA.73 The employee received severance
pay in return for waiving any claims against the employer. The Court held that the
plaintiff did not have to return the money before bringing suit, because the employer
failed to comply with three of the requirements of the waiver provisions under the
A related issue is the effect of arbitration clauses on ADEA claims. The Court75
held in Gilmer v. Interstate/Johnson Lane Corp., that the ADEA does not preclude
enforcement of a compulsory arbitration clause. The plaintiff in Gilmer, signed a
registration application with the New York Stock Exchange (NYSE), as required by
his employer. The application provided that the plaintiff would agree to arbitrate any
claim or dispute that arose between him and Interstate. Gilmer filed an ADEA claim
with the EEOC upon being fired at age 62. Interstate filed a motion to compel
arbitration based on the application and the Federal Arbitration Act (FAA),76 which
was enacted to change the "longstanding judicial hostility to arbitration . . . ."77
(G) the agreement provides that for a period of at least 7 days following the execution of such
agreement, the individual may revoke the agreement, and the agreement shall not become
effective or enforceable until the revocation period has expired;
(H) if a waiver is requested in connection with an exit incentive or other employment
termination program offered to a group or class of employees, the employer (at the
commencement of the period specified in subparagraph (F)) informs the individual in writing
in a manner calculated to be understood by the average individual eligible to participate, as
(i) any class, unit, or group of individuals covered by such programs, any eligibility factors
for such program, and any time limits applicable to such program; and
(ii) the job titles and ages of all individuals eligible or selected for the program, and the ages
of all individuals in the same job classification or organizational unit who are not eligible or
selected for the program.
72 29 U.S.C.A. § 626(f)(2).
73 118 S. Ct. 838 (1998).
74 Id. at 842.
75 500 U.S. 20 (1990).
76 9 U.S.C.A. § 1 et seq. (West 1970 & Supp. 1997).
77 According to Justice White, writing for the majority, the FAA was enacted to "reverse the
longstanding judicial hostility to arbitration agreements that had existed at English common
law and had been adopted by American courts." Id. at 24.
The lower court held that nothing in the language of the ADEA or its legislative
history prohibited arbitration of ADEA claims.78 The U.S. Supreme Court agreed.
Since the FAA represents a federal policy favoring arbitration, it is the burden of the
person agreeing to arbitrate to show that Congress evinced an intent to prevent
arbitration.79 Initially, the Court did not find that the goal of the ADEA was hindered
by allowing arbitration of ADEA claims.80 In a prior decision, the Court held "by
agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights
afforded by the statute; it only submits to their resolution in an arbitral, rather than a
judicial, forum."81 Nor would compulsory arbitration interfere with the duty of the
EEOC to enforce the provision.82 The Act's emphasis on informal methods of dispute
resolution, such as conciliation and persuasion, weighed in favor of arbitration, instead83
of against it. In addition, the Court found the arbitration procedures of the NYSE
were more than adequate to safeguard the employee's rights under the ADEA.
NYSE's arbitration procedures addressed concerns of bias,84 discovery procedures,85
the type of relief granted,86 and unequal bargaining power.87 Justice White, writing for
the majority, found that Gilmer's reliance on the Court's decision in Alexander v.
Gardner-Denver Co.,88 was misplaced. Gardner-Denver held that a plaintiff's civil
action under Title VII is not precluded by an arbitration decision handed down
pursuant to a collective-bargaining agreement.89 The cases were found to be
distinguishable since Gardner-Denver did not deal with enforceability of an agreement
to arbitrate statutory claims; occurred under a collective bargaining agreement to
resolve contractual rights; and was not covered by the Federal Arbitration Act.90
Ultimately, the Court found that Gilmer failed to meet his burden of showing an intent
by Congress to preclude arbitration of ADEA claims.
The Supreme Court revisited the issue of mandatory arbitration of statutory
antidiscrimination claims in Wright v. Universal Maritime Service Corp.91 In Wright,
78 Id. at 24.
79 Id. at 26.
80 Id. at 26-28.
81 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1987).
82 Id. at 28-29.
83 Id. at 29.
84 Id. at 30.
85 Id. at 31.
86 Id. at 32.
87 Id. at 32-33.
88 415 U.S. 36 (1974).
89 Gardner-Denver, 415 U.S. at 59-60.
90 Gilmer, 500 U.S. at 35.
91 119 S. Ct. 391 (1998). The Court considered "whether a general arbitration clause in a
collective-bargaining agreement (CBA) requires an employee to use the arbitration procedure
the Court held that "a union-negotiated waiver of employees' statutory right to a
judicial forum for claims of employment discrimination" contained in a collective
bargaining agreement must be clear and unmistakable.92 A general arbitration clause
contained in a collective bargaining agreement's grievance procedure is not enough
to waive an employee's right to pursue statutory antidiscrimination claims in court.
However, the Court did not address whether a "union's waiver of the rights of
represented employees,"93 even if clear and unmistakable, would be valid if an94
employee sought a judicial forum in lieu of the union's arbitration procedures.
The remedies available under the ADEA are patterned on the Fair Labor
Standards Act.95 The prevailing plaintiff may be entitled to "employment,
reinstatement, promotion, and the payment of wages lost and an additional amount96
as liquidated damages." The wages received are considered unpaid minimum wages
or unpaid overtime compensation.97 A willful violation of the Act gives rise to
liquidated damages. According to the Court in Trans World Air Lines v. Thurston,
for an alleged violation of the Americans with Disabilities Act of 1990 (ADA)." Id. at 392-93.
Wright was a longshoreman who was subject to a CBA between his union and the association
that represented several stevedore companies. The CBA contained a general arbitration clause.
When Wright was refused work after returning from an injury, he filed suit alleging violation
of the ADA. The employers filed for dismissal of Wright's suit for failure to use the
arbitration procedures contained in the collective bargaining agreement. The Fourth Circuit
Court of Appeals affirmed dismissal of Wright's claim on the basis that the "general
arbitration provision in the CBA . . . was sufficiently broad to encompass a statutory claim
arising under the ADA. . . " Id. at 394. Ultimately, the Court did not address the issue of
whether Wright had to seek arbitration on the basis that the "cause of action Wright asserts
arises not out of contract, but out of the ADA, and is distinct from any right conferred by the
collective-bargaining agreement." Id. at 396. However, the court does state that any CBA
requirement to arbitrate a statutory claim "must be particularly clear." Id. The Court quotes
from an earlier case, "'[W]e will not infer from a general contractual provision that the parties
intended to waive a statutorily protected right unless the undertaking is 'explicitly stated.'
More succinctly, the waiver must be clear and unmistakable." Id.
92 Id. at 396.
93 Id. at 397. See also U.S. Library of Congress, Congressional Research Service Report 98-
940, "Enforceability of Mandatory Arbitration Agreements: Wright v. Universal Maritime
Service Corp." by Jon O. Shimabukuro.
94 The Court concludes: "We hold that the collective-bargaining agreement in this case does
not contain a clear and unmistakable waiver of the covered employees' rights to a judicial
forum for federal claims of employment discrimination. We do not reach the question whether
such a waiver would be enforceable." Wright, 119 S. Ct. at 397(emphasis added).
95 Section 626(b) states: "The provisions of this chapter shall be enforced in accordance with
the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection
(a) thereof), and 217 of this title, and subsection (c) of this section."
96 29 U.S.C.A. § 216(b).
97 29 U.S.C.A. § 626(b).
"a violation of the Act [would be] `willful' if the employer knew or showed reckless
disregard for the matter of whether its conduct was prohibited by the ADEA."98 The
plaintiff, upon proving his claim of age discrimination, is entitled to reasonable99
attorney's fees and costs.
98 469 U.S. 111, 126 (1985).
99 29 U.S.C.A. § 216(b).
Amendments to the ADEA
Prior to 1974 an "employer" was covered if he had twenty-five or more
employees.100 The 1974 amendments reduced the number of required employees from
twenty-five to twenty, thereby expanding the coverage of the ADEA. The Act was
also amended to apply to Federal, state and local government employees, but
excluded state elected officials and their personal staff and appointees.101 Funding for
the Act was increased from three million to five million dollars.
In 1978, Congress extended coverage of the ADEA by increasing the upper-age
limit of the protected class of non-federal employees from 65 to 70 years of age, and
eliminating the upper age limit for federal employees. Congress also commissioned
the Secretary of Labor to conduct a study of the effect of the increase of the upper
age limit with an eye toward eliminating the upper age limit for non-federal
In regard to involuntary retirement, the 1978 Amendments prohibited use of a
bona fide seniority system or employee benefit plan to require involuntary retirement
due to age.102 This amendment clarified the ADEA's application to employee benefit103
plans that pre-dated the ADEA. However high ranking executives, policy makers
and employees under an unlimited tenure contract at an institution of higher
education, between the ages of 65 and 70, were exempt from this provision.104
100 Fair Labor Standards Amendments of 1974, Pub. L. No. 93-259, §28, 88 Stat. 55, 78
101 The Supreme Court in EEOC v. Wyoming, 460 U.S. 226 (1983), declared constitutional
the extension of the ADEA to state and local government employees as a valid use of
Congress' authority under the Commerce Clause.
102 This change to the ADEA was in response to the Supreme Court decision in United Air
Lines v. McMann, 434 U.S. 192 (1977).
103 The Fifth Circuit Court of Appeals in Brennan v. Taft Broadcasting Co., 500 F.2d 212 (5th
Cir. 1974), upheld mandatory retirement under an employee benefit plan that pre-dated the
ADEA. The Fourth Circuit of the Court of Appeals in McMann v. United Air Lines, Inc., 542th
F.2d 217 (4 Cir. 1976) held that mandatory retirement compelled by an employee benefit
plan constituted a `subterfuge' to evade the provisions of the ADEA. The U.S. Supreme Court
in United Air Lines, Inc., v. McMann, 434 U.S. 192 (1977), overturned the Fourth Circuit's
decision. Congress responded with the Age Discrimination in Employment Act Amendments
of 1978, legislatively overturning the Supreme Court's decision.
104 High ranking executives and policy makers were defined as someone who held such a
position the immediately proceeding two years and was entitled to certain forms of annual
The 1978 Amendments also sought to strengthen the enforcement procedures
of the ADEA. First, the right to a jury trial was codified into the ADEA.105 Second,
the Amendments detailed the time line for filing an ADEA claim. An allegation of
violation of the ADEA should be filed with the Secretary within 180 days of the
alleged unlawful practice. An individual may file suit under the ADEA 60 days after
filing a charge with the Secretary of Labor. If the alleged unlawful practice occurred
in a state having a prohibition against age discrimination in employment, and a
corresponding enforcement agency, then the grievant must file with the Secretary
within 300 days from the alleged unlawful practice or within 30 days after receipt of
notice of termination of proceedings under State law. The Secretary, upon receipt of
a charge of an unlawful practice, is responsible for seeking an elimination of the
alleged practice through informal methods of conciliation. An informal resolution
must not exceed one year.
The 1982 Amendments entitled employees between the ages of 65 and 69 to
coverage under any group health plan also offered to employees under age 65.106
The Deficit Reduction Act of 1984 amended the ADEA to entitle spouses of
employees ages 65 through 69 to coverage under group health benefits similar 107
to spouses of employees under age 65. The Older Americans Act Amendments
extended coverage of the ADEA to U.S. citizens working abroad for American
companies.108 However, employers are exempted from complying with the ADEA,
if to do so, would violate the laws of the country where the employee is working.109
Whether the employer of a U.S. citizen working abroad is liable under the ADEA is
based on the determination of whether the U.S. employer controls the corporation.
Factors to determine control include: "interrelation of operations, common
employees benefits totaling, at least, $27,000.
105 29 U.S.C.A. § 626(c)(2) (West 1985). The Supreme Court in Lorillard v. Pons, 434 U.S.
575 (1977), considered whether "there is a right to a jury trial in private civil actions for lost
wages under the [ADEA]." Id. at 576. The Court held that, although not explicitly stated in
the Act, a right to a jury trial was available based on the statutory scheme of the ADEA.
106 Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. No. 97-248, Title I, § 116(a),
107 Deficit Reduction Act of 1984, Pub. L. No. 98-369, Title III, § 2301(b), 98 Stat. 1063
108 Older Americans Act Amendments, Pub. L. No. 98-459, Title VIII, § 802(a), 98 Stat.
109 The ADEA does not apply where the employer is a foreign person not controlled by an
management, centralized control of labor relations, and common ownership or
The Age Discrimination in Employment Amendments of 1986 eliminated the
upper age limit for non-federal employees, hereby covering most employees age 40111
or older. Elimination of the upper age limit was motivated by the fact that the
population most affected by the limitation was the most vulnerable group, poor
workers. Concern over the cost of retirement has caused workers to stay in the
workforce beyond retirement.
On the other hand, the ADEA did not apply to the hiring, discharge or
mandatory retirement of a firefighter or law enforcement officer pursuant to state law
or a bona fide hiring or retirement plan. This exemption expired on December 31,
1993, but was reinstated by the Age Discrimination in Employment Amendments of
1996.112 The 1986 Amendments required a joint study by the Secretary of Labor and
the Equal Employment Opportunity Commission (EEOC) on the effectiveness of
physical and mental fitness tests for firefighters and law enforcement officers. The
EEOC would use the results of the study to create guidelines for the use of physical
and mental fitness tests in determining the ability of firefighters and law enforcement
officers to perform their jobs.
The 1986 Amendments also allowed for the mandatory retirement of tenured
employees at institutions of higher education who have reached 70 years of age until
December 31, 1993. At that time this exemption expired, and tenured faculty are now
protected under the ADEA. A study was also commissioned to examine the effects
of eliminating mandatory retirement for tenured employees.
The Age Discrimination Claims Assistance Act of 1988 extended the statute of
limitations for claims the EEOC failed to process before the statute of limitations
expired.113 Another extension was granted two years later with the Age Discrimination
Claims Assistance Act of 1990.114
110 29 U.S.C.A. § 623(h)(3)(A)-(D).
111 Age Discrimination in Employment Amendments of 1986, Pub. L. No. 99-592, 100 Stat.
3342 (1986). The upper age limit was actually removed months earlier by the Budget
Reconciliation Act, Pub. L. No. 99-272, Title IX, § 9201(b), 100 Stat. 171 (1986). The Older
Americans Pension Benefits subtitle, included in the Budget Reconciliation Act Public Law
112 Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, 110 Stat. 3009
113 29 U.S.C. § 626 (1994). See also Pub. L. No. 100-283, 102 Stat. 78 (1988).
114 29 U.S.C. § 626 (1994). See also Pub. L. 101-504, 104 Stat. 1298 (1990).
The Older Workers Protection Act sought to clarify the ADEA's application to
employee benefit plans. The Act overturned the U.S. Supreme Court decision, Public
Employees Retirement System of Ohio v. Betts,115 which held that bona fide employee
benefit plans which were not a subterfuge for discrimination were permissible under
the ADEA. One of the concerns surrounding the enactment of the ADEA was the
cost to employers of providing employee benefits to older workers. The "equal benefit
or equal cost" principle allowed employers to proportionally reduce the amount of
money spent on an older worker's employee benefits, so that the amount spent on the
older worker is equivalent to the amount spent on a younger worker. This principle
did not allow employers to reduce or deny benefits because of age, but did allow
employers to deduct for any increased costs that would make insuring or providing
benefits to older workers more expensive. It was believed that to not account for
increased costs would prevent employers from hiring older workers. This is
permissible under the ADEA even if such a reduction reduces the amount of benefits
an older worker receives. The Older Workers Protection Act restored the use of the
"equal benefit or equal cost" principle after it had been invalidated by the Supreme
Court in Betts. In addition, the 1990 Amendment established criteria for waiving any
rights of claims under the ADEA.
The Congressional Accountability Act of 1995 extended the rights and
protections of the ADEA, and several other civil rights laws, to congressional
The Age Discrimination in Employment Amendments of 1996 reinstated the
exemption for state and local firefighters and law enforcement officers created by the117
115 492 U.S. 158 (1989).
116 2 U.S.C.A. § 1301. "Employees" as defined under the Congressional Accountability Act
include employees of the:
(A) House of Representatives
(C) Capitol Guide Service
(D) Capitol Police
(E) Congressional Budget Office
(F) Office of the Architect of the Capitol
(G) Office of the Attending Physician
(H) Office of Compliance; or
(I) Office of Technology Assessment
117 Federal law enforcement officers and federal firefighters are covered under different
provisions. Section 3307 of Title 5 allows heads of agencies to establish its own minimum and
on December 31, 1993. The 1996 Amendments also reinstated the requirement that
the Secretary of Health and Human Services identify or create tests that would assess
the ability of firefighters and law enforcement officials to perform their tasks.
The Higher Education Amendments of 1998 added a new section to the ADEA
regarding voluntary retirement incentive plans for tenured faculty of higher education
institutions.118 Section 4 of the ADEA was amended to allow institutions of higher
education119 to offer supplemental benefits to tenured employees "upon voluntary
retirement that are reduced or eliminated on the basis of age."120 Supplemental
benefits are defined by the amendment as "benefits . . . in addition to any retirement
or severance benefits which have been offered generally to employees."121 The
institution may not reduce or cease non-supplemental benefits on the basis of age. If
an institution offers a supplemental benefits plan, a tenured employee upon becoming
eligible for retirement has at least 180 days to elect to retire and receive both her
regular benefits and supplemental benefits. Upon electing to retire, an institution may
not require retirement before 180 days.
maximum age limits for original appointments of federal law enforcement officers and
firefighters. 5 U.S.C.A. § 3307 (West 1996). Section 8425 gives the mandatory retirement
ages of federal firefighters and law enforcement officers. 5 U.S.C.A. § 8425 (West 1996).
118 Higher Education Act Amendments of 1998, Pub. L. No. 105-244, 112 Stat. 1581 (1998).
119 An "institution of higher education" is defined as (A) a proprietary institution of higher
education; [and] (B) a postsecondary vocational institution . . . " 20 U.S.C.A. § 1088 (West
120 Higher Education Amendments of 1998 § 941(a), 29 U.S.C.A. § 623(m) (1998).
121 Higher Education Amendments of 1998 § 941(a), 29 U.S.C.A. § 623(m)(2) (1998).