Explicit Use of Age Indicators

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While the ADEA generally prohibits employers from establishing maximum hiring or mandatory retirement ages for their workers, certain professions are exempt from the law: Among them are air traffic controllers, airline pilots, and public safety workers, including police, firefighters, and prison guards. However, numerous scientific and medical studies have shown there is little statistical support for this age-based discrimination. In fact, in virtually every circumstance, public safety would be better served by periodically testing the fitness of all public safety employees, regardless of age.

In addition, the law allows mandatory retirement to be imposed on partners, officers, and high-level executives. However, some firms abuse this exemption by, for example, requiring employees who are “partners” in name only to retire. Such policies are not only unfair to those who get pushed out the door purely on the basis of age, but they also tend to impact a firm’s other employment practices such as hiring and promotion.

The US Supreme Court in Kentucky Retirement Systems v. EEOC, 128 S. Ct. 2131 (2008), seemed to say that reliance on explicit age factors is permissible under certain limited circumstances. This ominous precedent should be kept strictly limited; if it is not, it may need to be corrected by legislation amending the ADEA.

Another practice that explicitly brings age into workplace decisionmaking is asking for applicants’ date of birth or date of graduation on job applications. With the proliferation of online job application systems that specifically require birth or graduation dates, employers can easily evade the purposes of the ADEA. Current regulation from the Equal Employment Opportunity Commission (EEOC) states that requests for such information on employment applications do not necessarily violate the ADEA but will be closely scrutinized to ensure that the requests are for a permissible purpose.

Explicit Use of Age Indicators: Policy

Eliminating mandatory retirement

AARP supports the elimination of maximum hiring and mandatory retirement ages for all workers, including public safety employees. Qualification for employment should be based on competency and fitness rather than age.

Congress should repeal legislation permitting state and local governments to establish arbitrary maximum hiring and mandatory retirement ages for public safety employees.

The EEOC (and state and local fair employment agencies) should proactively investigate and closely scrutinize employers that maintain mandatory retirement policies, and it should challenge those practices in appropriate cases.

Age indicators on job applications

The EEOC should revisit and strengthen its regulations to prohibit inquiries about age and date of birth in job applications, particularly in the online application process.

The presumption of legality should be converted to a presumption of illegality. That is, requests for such information should be presumed illegal unless the employer can demonstrate job-relatedness, and online application systems should not require entry of this information in order to submit the application.