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Larson on Employment Discrimination
Copyright 2017, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

8-134 Larson on Employment Discrimination 134.syn


Mandatory Retirement


Lex K. Larson, Esq.

Chapter Summary


Under the ADEA, mandatory retirement at any age is illegal for most non-federal employees, public and private, with certain statutory exemptions. Federal government workers are also protected against mandatory retirement, also with certain exemptions. This chapter, from Larson on Employment Discrimination (Matthew Bender), discusses the historical development of the ADEA amendments which removed the upper age limits for retirement. Originally, the protections of the act only extended to persons between the ages of 40 and 65. These upper age limits have been removed for both federal and non-federal employees, and several temporary exceptions have since expired. The chapter also discusses the permanent, exemption for non-federal executives and high policymakers, the exemption for firefighters and law enforcement officers which was reinstated in 1996, and the federal civil service exemptions.

State mandatory retirement rules for firefighters and law enforcement officers over age 55 are exempt, as long as the hiring and firing decisions of the local government are made "pursuant to a bona fide hiring or reinstatement plan that is not a subterfuge." It is not always as clear whether a particular job qualifies as a "law enforcement officer" within the meaning of the statute, and the chapter discusses the example of EEOC v. State of Illinois, where the circuit court considered whether a "special agent" was a protected state police officer. The chapter also discusses how, although legislatively overturned as to a different provision, courts continue to apply the Supreme Court's opinion in Public Employees Retirement System v. Betts to interpretation of the word "subterfuge."

EEOC interpretations state that the exemption for "executive or high policymaking" positions is to be construed narrowly. The standard used to determine who qualifies as a bona fide executive is different from the one for identifying high policy makers. The chapter explains how the bona fide executive exemption is a narrower definition than the Labor Department's Wage and Hour regulations. Cases have split on whether in-house corporate counsel positions are exempt. "High policymaking position" refers to top level employees who are not bona fide executives but who, because of their position and responsibility play a significant role in the development of policy; the chapter lists examples such as a chief research scientist of a corporation.

Mandatory retirement is generally prohibited for most federal employees. The "policymaking" exceptions do not apply. The chapter lists statutory mandatory exceptions, which include, besides firefighters and law enforcement officers, categories such as civil service air traffic controllers and nuclear materials couriers. Statutory mandatory retirement provisions for Foreign Service personnel have also been upheld.

Larson on Employment Discrimination (Matthew Bender) provides complete analysis of all major federal anti-discrimination statutes, which bar employment discrimination based on race, color, sex, national origin, religion, age, and disability. Larson's also includes extensive appendices containing the current version of all major federal anti-discrimination statutes (including Title VII, the Equal Pay Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act). In addition, the treatise contains practice forms covering all phases of discrimination litigation, including EEOC proceedings, settlement, summary disposition, and jury instructions.


Employment discrimination,Age Discrimination in Employment Act of 1967,ADEA,mandatory retirement under ADEA,mandatory retirement rules for firefighters,mandatory retirement rules for law enforcement officers,mandatory retirement for civil service air traffic controllers,mandatory retirement for nuclear materials couriers,mandatory retirement for Foreign Service personnel


For discussion of the BFOQ exception used to justify mandatory retirement, see Chapter 131, The BFOQ Defense.

For discussion of voluntary early retirement plans see Chapter 127, Prohibited Conduct Affecting Employment Status.

For discussion of involuntary retirement under bona fide plans, see Chapter 133, Exceptions for Bona Fide Employee Benefit Plans and Seniority Systems.


For a definitive and complete guide to labor and employment law written by authorities in the field of labor and employment, such as Lex Larson, Peter Lareau, and Jonathan Mook, see Labor and Employment Law (Matthew Bender).

For a thorough explanation of often-complex retirement arrangements, such as deferred compensation, 401(k) plans, cash balance and hybrid plans, as well as the ramifications of each for clients, see Bender's Federal Income Taxation of Retirement Plans (Matthew Bender).

For coverage of all aspects of federal and state laws governing minimum wage, overtime, and child labor standards, see Wages & Hours: Law and Practice (Matthew Bender).

For review of employment policies and practices unique to corporate counsel, model procedures and policies, and coverage of topics including discrimination, hiring and firing issues, investigations, EEOC mediation, and record retention see Corporate Counsel Solutions: Employment Policies and Practices (Matthew Bender).
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