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Elder Law Newsletter

Acceptable Age Discrimination

The Age Discrimination and Employment Act (ADEA) was enacted to promote the employment of persons, aged 40 and above, based upon their qualifications, capabilities, and merit rather than their age.  Under the ADEA, it is unlawful for any employer, employment agency, or labor organization to discriminate against employees on the basis of age.  However, under some narrow exceptions to the ADEA, such as the bona fide occupational qualification (BFOQ) exception, certain actions by an employer, although seemingly age-discriminatory, do not in fact violate the ADEA. 
 
An overview of some ADEA prohibitions include:
  • Employers may not discriminate on the basis of age at any stage of the employment process
  • Job advertisements may only include age limits where age is a BFOQ
  • Employers may not alter or reduce benefits for older employees
  • Employers may not discriminate against older employees in workforce reductions
  • Employers may not force employees to take early retirement
  • Employers may not retaliate against employees who assert their ADEA rights
Exception to the ADEA: Bona Fide Occupational Qualifications
One narrow exception to the ADEA's prohibition against age discrimination is an employer's use of age as a BFOQ.  Under the Federal Regulations Labor Code, using age as an occupational qualification will be deemed as “bona fide” only where it is “reasonably necessary to the normal operation of the particular business.” However, the BFOQ exception is only available as a defense under certain circumstances, as determined on a case-by-case basis. 
 
Burden of Proof
In ADEA claims, employees have the difficult burden of proving that adverse action was taken against them solely on the basis of their age.  However, when an employer alleges use of age as a BFOQ in making an employment related decision, the employer also has a high burden of proof to satisfy.
 
Employers asserting BFOQ have the burden to prove that the age limit is reasonably necessary to the essence of the business, and either:
  1. All or substantially all individuals excluded from the job involved are in fact disqualified, or
  2. Some of the individuals so excluded possess a disqualifying trait that cannot be ascertained except by reference to age.
Public Safety as a BFOQ
The BFOQ exception to the ADEA has been construed very narrowly.  Typically, the BFOQ exception is only accepted by the courts as a defense in cases where public safety has been an issue.  Employers such as fire departments, police forces, airlines, and bus companies who have been charged with ADEA violations have argued that imposing an age requirement on their employees was a BFOQ.  Such employers have claimed that certain mental and physical faculties required for the job are directly correlated to and deteriorate with age.  As a result of such cases, age has been found to be a valid BFOQ for some, but very few, types of jobs which are now recognized under the ADEA. 
 
For example, the Federal Aviation Administration (FAA) requires that pilots and co-pilots retire from their positions upon reaching the age of 60.  However, in Western Air Lines v. Criswell (1985), the Supreme Court declined to extend the FAA age regulation to “flight engineers,” noting that a flight engineer monitors a side panel in the plane, but does not actually fly the plane unless both the pilot and co-pilot are incapacitated. This decision emphasizes how narrowly the BFOQ exception in the ADEA is applied.
 
Job Advertisements Using BFOQs
A limited exception exists where an advertisement for a job position lists age as a prerequisite to apply.  Where the employer can adequately show that the age limitation placed in the ad was a BFOQ, the exception applies and there is no ADEA violation.
 
For example, if an employer must hire an actor to play the role of a 10 year old child, an age limitation would be appropriate as a BFOQ since a much older person would likely not be able to play that character.  Similarly, the requirement of a youthful appearance for models of teenage clothing would also likely be a BFOQ and thus permissible under the ADEA.  However, these exceptions are very specific and further demonstrate the narrow application of the BFOQ exception.

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