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History ADEA Discrimination

History of ADEA

In 1967, Congress enacted the Age Discrimination in Employment Act because of several unjustified discrimination claims against older workers were being presented in high numbers. The many claims that were received during this period forced what is known as the ADEA to protect workers over the age of 40 from unfounded employment discrimination. Its purpose is for “promoting the employment of older people based on their ability rather than age, and prohibiting arbitrary age discrimination.” Text book From its inception to 1978, ADEA covered workers between the age of 40 to 65 and later expanded its coverage to include workers up to age 70. Currently, the act cover workers over age 40 without having a maximum age that is protected. This is especially noteworthy since more and more people are living well beyond the anticipated life expectancy age and many are spending longer years in the workforce.

In Grafefenhain v. Pabst Brewing Company, the court said, “The ADEA stands for the propositions that this is a better country for its willingness to pay the costs for treating older employees fairly.” Both public and private companies with more than 20 workers located in the United States must adhere to the ADEA. Foreign companies, unions and employment agencies with workers in the United States are also held liable under ADEA.

Congress decision to move forward and enact such a discrimination act is indicative of the very fact that a lot of younger supervisors during the late 1960s felt there were good business judgments for treating older workers different from the other employees. The ADEA states that, “it shall be 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 privilege of employment, because of such individual’s age; to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individuals age; or to reduce the wage rate of any employee in order to comply with this chapter.”

Mandatory Retirement Illegal: Only for Some Occupations

Several occupations, including some law professionals, are debating when one becomes too old to practice in their chosen field. Though the Age Discrimination in Employment Act of 1967 protects workers forty and over from age discrimination, Congress amended the Act in 1986 to make mandatory retirement illegal. However, with exceptions to the amendment, some occupations in the private and public-sector continue to force workers out of the workforce door after a certain age. The law states, “It shall not be unlawful for an employer… to fail or refuse to hire or to discharge any individual because of such individual's age if such action is taken with respect to the employment of an individual as a firefighter or as a law enforcement officer and the individual has attained the age of hiring or retirement in effect under applicable State or local law…”

Fraternal Order of Police Fights Back

In 1993, Congress took away the rights of the states to set the age limits of police and firefighters legally allowed to remain employed across the nation. Within the ADEA, provisions included giving state and local police officers, correctional officers a five-year window – between the ages of 55 to 60 before they were required to retire. Needless to say, the Fraternal Order of Police successfully petitioned lawmakers in 1996 to reinstate individual states and agencies the privilege of setting their own enforcement retirement age guidelines. With establishing a mandatory retirement age, states were also allowed to enact a maximum age at which individuals could be hired for these types of positions.

Most police departments have been rigid in forcing officers from their posts when one becomes able to retire. For example, police officers in New Jersey are required to leave the job at 55, and according to the New York Police Department’s website, NYPD officers must retire at age 63. Chicago officers are forced out at 63 too. As for sworn police officers in Virginia Beach, they are required to leave their post at age 65. Iowa takes an interesting approach. In 1976, the State of Iowa enacted that “the maximum age for a police officer or firefighter employed for police duty or the duty of fighting fires is sixty-five years of age.” No exception.

(http://www.state.ia.us/government/crc/docs/montz1conclusionslaw1.html)

Workers over 55 Accounts for a Large Part of the Workforce

Back in 2006, Equal Employment Opportunity Trust (EEOT) conducted an online Work and Age survey to gauge and determine ways to assist in “recruiting and retaining the skills, experience and energy of older people” in the workforce.

(http://www.eeotrust.org.nz/content/docs/reports/WorkandAgeReport%202006.doc) The survey revealed that of the 6,484 people who responded, most retired at age 65 or later. Although many police officers who retire are generally in their late 40s to early 50s, there are many who wish to remain on their job posts well beyond this age. In many instances, the municipal governing bodies, city councils and city managers agree that they should stay. Moreover, this is a staggering indication that forcing police officers from their positions at 55 – as New Jersey does is ludicrous, preposterous and absurd. For those officers who have dedicated and built their lives around protecting the public for several years, it is extremely unfair to be given a promotion at a rather young age of 50 only to enjoy the position for five years before required to step down. Most people around this age are working, exercising and continuing their daily lives as normal citizens and in good health. According to economist Dean Baker in Over 55 in U.S.? Get Back to Work! published by Commondreams.org, he says: “workers over age 55 accounted for 918,000 of the 1,810,00 rise in employment shown in the U.S. Department of Labor household surveys.”

(http://www.commondreams.org/views05/0314-26.htm)

According to Arthur Shostak in “Futures Poll on Americans, Work and Education” with the Drexel University Center for Employment Futures, fifteen percent of Americans over 65 are working full or part time. Of the 4.7 million older workers still on the job, around about 47 percent of them say they remain employed simply because they need the money. However, 80 percent says it is because they want to remain active, productive and enjoy the company of other people.

Below is a chart produced by the Equal Employment Opportunity Trust which shows an overwhelming 61% of men and 58% of women expect to retire anywhere from 65 to age 74. This also shows that 16% of men expect to retire after their 75^th birthday. In an article entitled, “Police Profile Stays Much the Same” in the New York Times, ____% of police were men. This is reflective around that nation. Most police departments employ more men than women.

66: Chief of Police Forced to Retire

In 1997, Charles Fortenbacher, chief of police for Bernards Townships in New Jersey was dismissed from his position because he was 66 years old. At the time, a bill was being introduced by a New Providence Republican lawmaker putting an end to forced retirement ages, but the Policemen’s Benevolent Association in Bernards Township was unwilling to take a position on the mandatory age retirement bill because the organization “supported a mandatory retirement age of 65 because it helps lower-ranking officers move up more rapidly.”

At this time, Chief Fortenbacher and 90 other police and firefighters across the state were terminated from their positions – even though many citizens in the city believed he contributed a lot to the department. Although he had only been the chief of police for six years, he served as an officer in the field for more than 41 years. Fortenbacher responded in a New York Times article saying, “I am amazed that this law ever got through. I want to stay on. Some people are young at 65 and others are old long before that.”

Old Time

A Federal District Court in Albany, New York awarded four dozen New York State Troopers $1.2 million in back pay and benefits in 1996 because they were forced to retire at age 55. The court’s ruling indicates that forced retirement is a time of the past.

As police departments and correctional facilities across the nation tackle the fight of when too old is literally too old, the Texas Commission on Law Enforcement Officer Standards and Education issued an Executive Summary for Organizational Excellence in 2006 which encouraged Texas police agencies to continue establishing a well balanced workforce. Suggestions from the report indicate “a large percentage of older individuals may be a cause of concern if a number of key employees are nearing retirement age" (17). The study also provides a fundamental approach to incorporating older workers into what could often appear as a seemingly younger police department.

Safety Concern: An issue?

Critics who favor a maximum age of those who enforces the law have recently used the case of 76-year old Paul Rein, a Broward Sheriff’s Deputy who was fatally shot and killed in the line of duty in November of 2007 with his own gun while transporting a 40-year old inmate to the hospital as an argument that safety should be a department’s number one focus. They argue Rein was too old to perform his job, while the Sheriff’s Department claims he simply did not adhere to policy within the department that prevents deputies from releasing inmates from the van while en route to different locations. While Rein’s official job title was a correctional officer, his age still applied to the law that gives agencies the right to have a cut off age of people they hire within their department.

Although some agencies allow agencies to retain officers over 65, according to an Associated Press report and Florida’s Department of Corrections, “85 state correctional officers are over the age of 65 and 372 between age 60 and 64.” Throughout the nation, several other departments have officers over 65. For example, there are also at least 18 officers in the Los Angeles Police Department over the age of 65 and less 20 officers in the Dallas Police Department over 65. While Orlando only has one officer over 65, Philadelphia’s Police Department currently has 7 officers over 65.

Every citizen has the right to be protected by law enforcement departments to the fullest extent that the law allows. Therefore, officers nonetheless should be physically able to perform their job when dealing with rigorous to minimal tasks. The turning of an age does not qualify nor disables an individual from executing their job. That’s why some departments have discontinued the “mandatory retirement” method and have sought after other alternatives to ensuring one is qualified to remain on the job. Some departments have a physical fitness requirement. This replaces the maximum age limit requirements. For example, the Fort Worth Police Department has implemented this approach in hiring and retaining officers in their force.

In the late 1960s, it was probably appropriate to mandate retirement age restrictions. However, that was several decades ago. Conditions and circumstances were different years ago, and it is apparent that the retirement age rules appear to be outdated.

In October of 2000, a physical and mental competency test was developed in New Jersey for individual police departments to administer to officers approaching their 65^th birthday. The purpose of the test was to ensure the well-being of those officers who wished to remain on the job. Chief Fortenbacher was never given the privilege to wait for the creation of the test to see if he was physically capable of continuing to serve in the capacity of overseeing the Bernards Township Police Department. Other departments and states across the nation have resorted to using other measurements to ensure officers are well qualified to perform their duties. Just as some states have jumped on the bandwagon of implementing these new alternatives, some municipalities and local agencies remain steadfast to a maximum age of being employed.

During the time Chief Fortenbacher was scheduled to be forced from his position, he and other officers as well as firefighters lead a massive campaign to try stopping the limit from being enforced until the test [was] developed according to the same New York Times report. Their defense was that the decision about when to retire should be made voluntarily by workers. Being required to step down around ages 55 to 60 is earlier than normal retirement ages compared to a vast majority of other occupations.

Depending on the scope and nature of the job, physical fitness is not even a requirement. In Chief Fortenbacher’s case, his primary responsibilities was to ensure that the 39-member department operates at an optimal level. He was more so a figure head for the department and did not have to do patrol as the regular officers did according to its website. Some of his job duties at the time included:

Overseeing departmental structure and officers

Continuing to develop Task Force concept by working with other departments to increase patrols in an effort to identify those entering our jurisdiction to commit crimes

Continuing to maintain a high level of training in all aspects of Law Enforcement

Continuing to explore methods to reduce crime throughout the Township by utilizing the latest techniques and technologies

Expanding the Anti-Crime task Force in scope and responsibility

Training detective as Identification Officer

Designing an exercise to test the effectiveness of the Emergency Operation Plan.

Participating in the exercise with other township emergency services personnel.

Seeking additional training in areas of emergency preparedness

As you are able to identify from the aforementioned description of his job, most of the chief’s responsibility was to provide supervision and administration to the department team of officers. As previously mentioned, unfortunately Chief Fortenbacher and the other officers’ efforts proved unsuccessful.

Health and Longevity

With the ever-increasing improvements in treating chronic and even minor illnesses has been a long debated issue as to whether the mandatory age retirement is even needed. Some critics argue that in terms of the US population, the health of older people has increased from decades ago. Jobs that may have required younger workers are now capable of having workers from any scope of the age realm.

According to the National Active Retirement Association, recent mortality rates suggest that people who are in their late 60s are just as healthy as 50-year olds were in the mid-1960s a few decades ago. The facts and trends continue to show that people are living way beyond what was originally expected. Because of change in eating habits, exercising and a new found reason to stay physically fit is keeping older workers on the job longer. Now more than ever, it is much less important when a person considers retiring than the case was several years ago, according to the same association.

Baby Boomers

As the workforce makeup continues to mirror the nation, more and more baby boomers are exiting their jobs. Some workers who are skilled and experienced in their positions are facing retirement either because they are forced to leave because of aging or seniority. With the first baby boomers turning 61 this year and millions more reaching 61 in the next few years, their forced retirements burden shifts to the current working generation to support them because they are living much longer. The mandatory retirement not only creates a hassle with this generation, this also creates an impending worker shortage in skilled and experienced workers in the retiree’s fields. And this shortage is more apparent in jobs that have a mandatory retirement clause.

Even Canada has recognized there is a problem with a mandatory retirement age. Since 1990, the Supreme Court of Canada has not made any rulings regarding mandatory retirement. However, in 2005, Lawson Lundell LLP published in British Columbia, Canada that “the demographics of the workforce have changed such that the proportion of retired workers to employed workers is rapidly increasing. This change is due partially to the aging of the baby boom generation and partially due to longer life expectancies of people after retirement. Coupled with this shift in demographics, a trend is developing in Canada to end the practice of mandatory retirement.” Provinces such as Quebec, Manitoba and Ontario have all introduced legislation putting a ban on mandatory retirement.

St. Paul, MN. Firefighters

Several cities across the nation continue to require firefighters from their positions after a certain age. Cities such as St. Paul, Minnesota have enacted legislation that calls for a mandatory retirement age at 65 or sooner if necessary precaution exists as a bona fide occupational qualification. St. Paul’s city council reviewed the ADEA and its mandatory retirement age and now requires that all uniformed fire employees who are a firefighter, fire equipment operator or a fire captain leave their post at 65. In Chapter 26 of the City’s Uniformed Division of Fire Department Mandatory Age Legislation, (http://www.stpaul.gov/code/ac026.html) the act “requires that all employees in said positions must retire on the first day of the month immediately following the month in which the employee reaches age sixty-five.” Moreover, there is a mandatory retirement age of 70 for district and deputy chiefs. Plus, fire chiefs have to call it quits after they reach the age of 70.

The city council created the mandatory retirement age after carefully reviewing and listening to testimonies from several parties who both in favor and who does not favor such law. According to the legislation, council members based their decision on: firefighters being in excellent physical condition, being able to periodically perform severely strenuous acts in the course of firefighting and life saving and protecting the citizens of St. Paul.

The District Federal Court in Minnesota determined that there was a bona fide occupational qualification for the firefighters to step down at 65. However, they determined that it was not reasonable or needed for a fire or district chief to dismiss their duties with the city at 65 – instead at 70. The Federal District Court’s reasoning for allowing fire and district chiefs an extra five years is because their primary duties involved “supervision, but such employee can be called upon at any time to perform the duties of firefighter, fire equipment operator or fire captain, and the judgment and decisions of a deputy chief or district chief can affect the safety of fellow firefighters and citizens, and a mandatory retirement age of seventy (70) for such positions would be in the best interest to fully protect the property and public safety of the citizens of the city.”

Younger Firefighters Defend Their Older Colleagues

In the Fire Engineering Magazine: Training the Fire Service, Resources for Firefighting Training, FDIC, several firefighters responded to the mandatory retirement age. A training chief who did not want to be identified said that “the ability to do the job safely and effectively should be the standard, not age. I've experienced several 25-year old firefighters who physically couldn't keep up with firefighters twice their age. Physical fitness is accountability to your peers.”

Obviously, this is a hot topic with firefighters who are steadily approaching the mandatory retirement age in several cities across the nation. But what is surprising is that a lot of the younger firefighters have jumped on the bandwagon in support of keeping the older workers employed. In the same magazine mentioned above, several younger firefighters defended their older colleagues. One 26-year old firefighter wrote, “There are some guys younger than me who were trained to pass the physical agility test and once they received a position they stopped training physically. These same younger firefighters could not go out there today and pass the test. If the older member of the fire department remains in great shape and good health, they should be allowed to stay on for as long as they can; think of all the valuable experience they bring to a department.”

Why Retire?

In Erisa Litigation, several reasons were given as some possible benefits to mandatory retirement. One reason was to the deferred compensation theory. This theory maintains that at the start of a person’s career he or she is underpaid, and by the time a person retires, he or she is overpaid. Because an older worker works to receive retirement benefits after retirement, one may choose to remain active for a smaller salary after retirement to continuing receiving those same benefits.

Other reasons that critics are in favor of mandatory retirement is because when older workers retire, this opens up jobs for others – benefiting younger workers.

If a person opts to continuing work because they enjoy their position, they should be allowed to. With recent studies, older workers feel forced and pressured to leave. In the EEOT survey, one person indicated she left because of bullying tactics. She said that the workers at the company stopped speaking. They started altering her work to make it appear as mistakes and later realigned her position to cause redundancy in other people’s position. Although these sorts of situations could happen to other people regardless of their race, these same tactics and others were repeatedly mentioned.

Another older worker survey said she felt she was ostracized because the younger workers felt she was not incapable of performing her job duties. Even though she was not in a position that had a mandatory retirement age enacted by law, she said she felt pressured in other ways to retire: “There is a tendency to assume that once you pass 40 you can’t learn new things, it takes you longer to do things, that you are less adaptable, and less able to keep up with the demands of changing technology in the workplace. There’s also an assumption that the over-40s can’t hack the pace and that people of 50 should just quietly fade into the background. My personal experience is that I’m regarded as being past my prime and I feel it’s unlikely I will gain any further promotion.”

Proposition 14

Just recently in Texas, judges and justices were involved in the mandatory retirement age debate. The House Join Resolution 36, also known as Proposition 14 to Texas residents who voted on the issue on November 6, 2007 passed unanimously in the Texas House. The bill requires justices or judges who reach the mandatory retirement age of 75 to continue serving in their capacity until the remainder of their current term. Proposition 14 did pass. However, passing the bill was a fight. Two judges – Judge John Coselli (125^th District Court) and President of Texas Association of District Judges (2007-2008) and Judge Julie Kocurek (390^th District Court) and President of Texas Association of District Judges from 2006-2007 wrote to several newspapers across Texas urging voters to vote in favor of the amendment. “Proposition 14 would not create any additional expense for the State and would bring an end to the delay, expense and inefficiencies in the administration of justice created by the vacancy in a court when a judge reaches the mandatory retirement age of 75 and is required to immediately retire. We respectfully request that you support Proposition 14 at the polls on Nov. 6, 2007, or at early voting beginning Oct. 22, 2007.”

Nonetheless, this proposition was faced with heated critics arguing that judges should not be allowed to stay in their positions after 75 because the original intention of creating such law in the first place was because of work and aging ineffectiveness. “Timely retirement on reaching the mandatory age ensures a capable and alert judiciary for the state. This extension allows justices and judges to serve past their 75th birthday and delays the election or appointment of new justices and judges who may be better versed in current developments in the law,” argued Brett Steinberg of the Lone Star Times.

Making it mandatory that a judge or justice retire in the middle of their term creates chaos. Mid-term retirement is a guaranteed way to disrupt the duties of the court. Forcing a judge or justice retire immediately after their 75^th birthday requires some cases to be delayed while another judge is selected to finish the hearing. Even more disruption would occur if an election has to take place after a judge’s birthday for a case to continue. The Lone Star Columnist persuasively and thoughtfully mentions that “the amendment will provide for the election of a successor justice or judge at the end of the term of office and will avoid the appointment of an inexperienced, temporary successor serving until the next election cycle.”

Age 60 Rule

Airline pilots are not just joining the mandatory age retirement fight. Long before the 1980s, pilots have fought to continue flying pass their 60^th birthday. In 1979 when the House of Representatives rejected an amendment to strike the Age 60 Rule, the National Institutes of Health was charged with conducting a survey to determine if sufficient medical evidence provided major reasoning for forcing pilots from the sky. When the National Institute of Age Review Panel on the Experienced Pilots Study reviewed the report, they reported to Congress that “no special medical significance to age 60 as a mandatory age for retirement of airline pilots.” However, the report continued. It shocked several pilots: “age-related changes in health and performance influence adversely the ability of increasing numbers of individuals to perform as pilots with the highest level of safety and, consequently, endanger the safety of the aviation system as a whole.”

The fight hasn’t changed. Actually, it’s only increased. For some pilots, the reason they’re opposed to the mandatory retirement age is because with several of the major airlines in bankruptcy, the commercial pilots are facing a major drop in their pensions. Jack Speer of the National Public Radio outlines the case in a radio package entitled, “With Benefits Dwindling, Pilots Fight Retirement.” Speer says: “For thousand of commercial pilots, the dream of gliding off into retirement with a fat pension is gone. The government-run pension fund pays out a maximum $45,000 a year for those who retire at 65, but it’s only $28,000 a year about for those who retire at 60.” The pilots were expecting a lot more money. Some are approaching the end of their careers and have worked their entire lives to live somewhat comfortable after retirement. Pilots have petitioned Congress to allow them to make up some of their pension by letting them fly their wings a little longer.

Pilots have been met with strong opposition. The two largest pilot unions - Air Line Pilots Association (ALPA) and the Allied Pilots Association (APA) favor keeping the retirement age at what it is now. Congress hasn’t budged. The age remains the same, and the fight continues.

This fight isn’t just here in America. Even in Canada, pilots are fighting the mandatory retirement age. George Vilven and 70 other Air Canada pilots filed petitions with the Canadian Human Rights Tribunal arguing that the company’s policy is age discrimination. They’ve organized a group called Fly Past 60.

The Federal Aviation Administration (FAA) tackled this debate head-on mostly between 1993 and 1995, and the issue recently resurfaced in 2005 during the 109^th Congress. During the comprehensive studies some ten plus years indicates there is no statistical relationship between a pilot’s age and accident rates. Nonetheless, in December of 1999, the first pilots who reached the age of 60 were required to retire because of the federal mandate.

Retire vs. Don’t Retire

In 2001, Air Line Pilots Association President Captain Duane Woerth responded to the mandatory pilot retirement age. He said, “ALPA regards the Age 60 Rule as an extremely important safety regulation that should not be overturned without the full support and confidence of the FAA.” Though medical evidence doesn’t support the FAA reasoning for enacting such law, the FAA stands behind that as people age, they experience more illnesses and disorders – without giving pilots an individual test after age 60 to determine if they are still fit to remain in the air. FAA cites, “age 60 is within the age range during which the [we] and the medical community have found that sharp increases in disease and morbidity occur, and it has served well as a regulatory limit since 1959.”

Representative Jim Gibbons reintroduced H.R. 65 to modify the FAA’s age 60 retirement rule, but the bill failed. Even the similar bill in the Senate, S. 65 didn’t pass because of FAA’s testimonies. Gibbons is disappointed in the FAA’s rules. “Our nation has thousands of experienced, skilled and capable pilots. Unfortunately, the most experienced can not fly for a commercial airline because once they turn 60, they are forced to retire,” said Gibbons. “The age 60 rule imposed by the FAA has no basis in science, yet it is still on the books. It is time to rescind this outdated regulation, and allow our best experienced pilots to do their jobs.”

Airline pilots are required to take a proficiency test and physical exam every six months. The purpose of the test is designed to weed out pilots who do not have highest levels of proficiency and cognitive or motor skills. According to the FAA strict guidelines, pilot jobs are at risk if they fail even minor portions of the exams. The physical part of the test is administered by a FAA certified medical examiner, and all of the electrocardiograms (EKG) are reviewed at the FAA medical center. There are many other options that could allow pilots to remain in the air after 60 if the FAA would relax its current rules. One pilot quoted in a New York Times article said, “If a pilot’s blood pressure is high or hearing is less than perfect, then the pilot’s career is likely over.”

In, “The Age 60 Rule: Age Discrimination in Commercial Aviation,” author Wilkening Redding with the Department of Occupational and Environmental Medicine at The Johns Hopkins Bloomberg School of Public Health in Baltimore, Maryland concluded that scientific statistics have not found medical, scientific or safety reasoning for justifying the Age 60 Rule. And Dr. Susan Baker, of Johns Hopkins University, wrote: “…there is no scientific evidence to support the Age 60 Rule. From 1991 until 1993, I served on a panel of experts appointed by the FAA to oversee the FAA-sponsored research by Hilton Systems. This research, at a cost of well over a million dollars, found no basis for the Age 60 Rule and recommended that the age limit be increased… I would rather fly with my life in the hands of a 64-year old captain than with a 29 year old pilot flying as captain.”

Conclusion

Enhance organizational performance and profitability by retaining older workers with needed skills

Global opinion against mandatory retirement – Research funded by HSBC and conducted in 10 countries covering half the world’s population found a “resounding global rejection of age-based restrictions on working, with people throughout the world being opposed to a mandatory retirement age and any government or corporate rules preventing older people from working in retirement.”(18)

Bully tactics: not speaking, altering my work to make it appear as mistakes, finally realigning the position causing my redundancy.

Tenured Faculty Fight

In the Roman Catholic Church, Pope Paul VI introduced a mandatory retirement age of 70 for priests and 75 for bishops and archbishops; there is no mandatory retirement age for the pope, though cardinals cease having a vote in the College of Cardinals at age 80.

In Australia, the Governor-General can remove Justices of the High Court (and other Parliament-created courts) in limited circumstances (because of the constitutional separation of powers doctrine) so a Constitutional amendment was passed in 1977 to enforce a mandatory retirement age of 70 for federal judges.

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Erisa Litigation

By Jayne E. Zanglein, Susan J. Stabile

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