In most professions, forced retirement based on age is illegal. Although many employers used to have a mandatory retirement age, this formerly common practice was eventually prohibited by the Age Discrimination in Employment Act (ADEA). However, when Congress first enacted the law, it allowed employers to adopt mandatory retirement policies.
The ADEA prohibits discrimination based on age in any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. It also prohibits retaliation against an employee who opposes discriminatory employment practices, files an age discrimination charge, or files or participates in an age discrimination lawsuit. The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC).
Who Is Covered by the ADEA?
The ADEA applies to private employers with twenty or more employees; the federal government; state and local governments (although state employees may not sue their employer directly for violating the ADEA); employment agencies; and labor organizations.
The ADEA protects only employees and applicants who are at least 40 years old. Unlike other laws prohibiting discrimination, the ADEA doesn’t outlaw “reverse discrimination.” Those who are younger than 40 have no rights under the law.
Can You Be Forced to Retire?
For the last 25 years, it has been illegal for employers to adopt a mandatory retirement age. When Congress first passed the ADEA, however, it protected only workers between the ages of 40 and 65. Once an employee reached the age of 65, he or she could be forced to retire.
The cutoff was raised to 70 in 1984; President Reagan, who was already past the new upper age limit, signed this amendment into law. A few years later, the upper limit was eliminated altogether. Today, as long as an employee is at least 40 years old, he or she cannot be treated differently solely based on age.
There are a few exceptions to this general rule, however. Although employers generally may not adopt a mandatory retirement age, an employer may consider age in the following circumstances:
- First responders. State and local governments may institute a mandatory retirement age of 55 or older for firefighters and law enforcement officers.
- Executives and policy makers. Employers may require a high-ranking employee to retire or step down to a lesser position if the employee is at least 65 years old; the employee has worked for at least the past two years as a bona fide executive or in a high policy-making position; and the employee is entitled to an immediate, non-forfeitable annual retirement benefit of at least $44,000 from the employer.
- Bona fide occupational qualification (BFOQ). An employer may consider age in filling a job if age is a BFOQ – that is, if the job, by its very nature, must be filled by an employee of a particular age. This defense is available to an employer only if the age limit or other age-related policy is reasonably necessary to the essence of the employer’s business, and (1) all or substantially all people who are older than the age limit would be unable to perform the job, or (2) some people who are older than the age limit would be unable to perform the job and testing each person individually to determine whether he or she can perform the job would be impossible or highly impractical for the employer. If the employer’s goal in using the BFOQ is public safety, the employer must also show not only that the age limit achieves that goal, but also that there is no acceptable alternative that is less discriminatory.
Do You Need a Lawyer?
Because forced retirement based on age has been illegal for some time, few employers openly adopt mandatory retirement policies. However, this doesn’t mean that age discrimination no longer happens. If you believe that you are being laid off, fired, or eased out because of your age, you should talk to an experienced employment lawyer.
If you are asked to sign a severance agreement, waiver, or release that gives up your right to sue your employer for age discrimination, you should consult with an attorney before signing. The ADEA requires employers who want you to waive your ADEA rights to advise you to talk to a lawyer first. Before you agree to take money in exchange for giving up your rights, you should know what those rights are worth. The only way to figure out whether you are getting a fair deal is to talk to a lawyer and find out whether you have a viable age discrimination claim against your employer. If so, you may be able to negotiate a higher severance with your employer – or pass on the severance altogether and take legal action. A lawyer can help you evaluate your situation and decide on the best strategy.