Does A Mandatory Retirement Age Violate The Age Discrimination In Employment Act?
The Age Discrimination in Employment Act (ADEA) prohibits discrimination in employment against individuals who are at least 40 years of age. Under the ADEA, employers are not permitted to make employment decisions on the basis of an individual’s age. The prohibited employment practices under the ADEA include discriminatory discharge, failure to hire, demotion, failure to promote, reduction in hours, and any other discrimination with respect to the compensation, terms, privileges, or conditions of employment because of an individual’s age.
The ADEA does contain an exception to general prohibition against age discrimination. Under the ADEA, an employer is lawfully permitted to make an employment decision on the basis of age if the employer can show that reliance on age is justified by the bona fide occupational qualification defense (BFOQ). Employers generally invoke the BFOQ defense when utilizing a maximum hiring or mandatory retirement age. The employer must demonstrate that the age limitation is a bona fide occupational qualification necessary to the performance of the duties of the job involved. In seeking to establish the BFOQ defense, employers customarily argue that the age limitation for the job involved is necessary because of safety considerations. For example, the U.S. Fifth Circuit Court of Appeals in E.E.O.C. v. Exxon Mobile Corp., 560 Fed.Appx. 282 (5th Cir. 2014)recently held that Exxon’s mandatory retirement policy requiring its corporate pilots to retire at age sixty was justified by the BFOQ defense because of public safety concerns.
In Western Airlines v. Criswell, 472 U.S. 400 (1985), the U.S. Supreme Court described the BFOQ defense as an “extremely narrow exception” to the ADEA’s prohibition against age discrimination. In its administrative regulations enforcing the ADEA, the U.S. Equal Employment Opportunity Commission (EEOC) has determined that the BFOQ defense has limited scope and application. The Supreme Court has also ruled that an employer’s ability to prove that its age limitation qualifies as a BFOQ exception to the ADEA is determined on a case-by-case basis. As Supreme Court precedent and EEOC regulations reflect, the BFOQ defense only applies under rare and exceptional circumstances. The employer bears the burden of proving the BFOQ defense.
U.S. Supreme Court Test For BFOQ Defense
In Criswell, the Supreme Court examined the legal standards for a BFOQ defense and adopted a two-part test for establishing a BFOQ exception to the ADEA. When an employer satisfies the two-part test, the employer may lawfully rely on age when making an employment decision, including lawfully require mandatory retirement at a specified age.
First, an employer is required to prove that the job qualifications which it invokes to justify its discrimination are reasonably necessary to the essence of the employer’s business. Second, the employer is required to prove that its age qualification is something more than convenient or reasonable. Instead, the employer must show that its qualification is reasonably necessary to its particular business because it is compelled to rely on age as a proxy for the safety-related qualifications validated in the first inquiry. The Court set forth two alternative ways to establish the second part of the test. One method is for the employer to show a substantial factual basis for believing that all or nearly all persons over the particular age would be unable to perform the duties of the job involved safely and efficiently. The other method is for the employer to show that it is impossible or highly impracticable to individually test employees to determine whether each employee can perform the duties of the job involved safely and efficiently.
Application of Supreme Court Test For BFOQ Defense
The Court’s decision in Criswell reflects the limited scope and application of the BFOQ defense. In that case, the Court assessed whether Western Air Lines’ (Western) requirement that its flight engineers retire at age 60 was justified by the BFOQ defense under the ADEA. Western’s age limitation was derived from a regulation of the Federal Aviation Administration (FAA) prohibiting any person from serving as commercial pilot if that person has reached his or her 60th birthday. The FAA justified its mandatory retirement for pilots on grounds that incapacitating medical events and other adverse physical changes occur as a consequence of aging. However, the FAA had not established a mandatory retirement age for flight engineers. Western contended that its mandatory retirement age for flight engineers qualified as an BFOQ exception to the ADEA.
After setting forth the two-prong test for establishing the BFOQ defense, the Supreme Court considered Western’s argument that its mandatory age retirement for flight engineers qualified for the BFOQ exception because the age limitation was reasonable in light of the safety risks. In rejecting Western’s argument, the Supreme Court explained that the BFOQ standard is one of “reasonable necessity,” not reasonableness. Thus, the Court reasoned, the ADEA imposes a substantially higher burden of proof on employers than mere reasonableness. The Court also pointed out that a reasonableness standard is inconsistent with the purpose of the ADEA. Under the ADEA, employers are to evaluate employees “on their merits, and not their age.” In rejecting Western’s argument, the Court held that Western’s mandatory retirement age for flight engineers was not justified by the BFOQ defense under the ADEA.
A more recent case brought by the EEOC, EEOC v. Asian World of Martial Arts, Inc., in the U.S. District Court, Eastern District of Pennsylvania, on behalf of Morris Pashko (Pashko) further illustrates the limited scope and application of the BFOQ defense. In that case, the EEOC alleged that Asian World of Martial Arts, Inc. (Asian World) terminated Pashko, who was 74 years old and oversaw the company’s bookkeeping, accounting, and other financial activities, pursuant to a mandatory retirement policy of age 67. Asian World allegedly notified Pashko, while he was in the hospital recovering from surgery, that it had implemented a policy mandating retirement at age 67 and he would be terminated pursuant to that policy next month. The next month, according to the EEOC, Pashko was terminated pursuant to the mandatory retirement policy. On May 11, 2011, the EEOC and Asian World entered into a Consent Decree wherein Asian World agreed to pay Pashko $100,000 to resolve the case.
Under Supreme Court precedent, an employer bears a heavy burden in proving that a mandatory retirement policy of age 67 for its bookkeepers or accountants is justified by the BFOQ defense under the ADEA. Because the BFOQ defense has only limited scope and application, it is highly unlikely that an employer would be able to withstand a court’s heightened scrutiny and establish a substantial factual basis for believing that all or nearly all persons over the age of 67 would be unable to safely and efficiently perform the duties of a bookkeeper or an accountant. In the absence of showing that a mandatory retirement policy of age of 67 for bookkeepers or accountants qualifies as a BFOQ exception to the ADEA, an employer’s decision to terminate a bookkeeper or accountant aged 67 or older pursuant to such a policy would violate the ADEA.
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