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Exceptions to the ADEA

Most employees and job applicants who are 40 years or older are protected from age discrimination by the federal Age Discrimination in Employment Act (ADEA). However, in a few very narrow cases, ADEA allows employment-related decisions to be made based on age. Here are examples:

Bona Fide Occupational Qualification (BFOQ)

These are cases in which an employer must be able to prove that an age limit is necessary for the job. An example might be the case of a model: An employer would not have to hire a 60-year-old as a model or an actor in a television ad for clothing for teenagers.

Employee Benefit Plans

While an employer may not deny individuals who are protected by the ADEA the opportunity to participate in the employer's benefit plan because of their age, in some circumstances the ADEA permits employers to provide different benefits to older workers than to younger workers. An employer may provide lower life, health, and disability benefits to older workers as long as the cost of those benefits is equal to the cost of benefits for younger workers.

When the cost of benefits increases with the age of the employee, the "equal cost or equal benefit" rule applies. According to the Equal Employment Opportunity Commission, the agency responsible for enforcing the ADEA, this rule "gives employers a choice: they will avoid violating the law if they either provide equal benefits to their older and younger workers or spend an equal cost to purchase those benefits, even if the benefits are not equal." (For more information, see the EEOC website.)

Mandatory Retirement of Executives and High-Level Policymaking Employees

An employer may require employees to retire if they are at least 65 years old, are entitled to an annual retirement benefit (such as a pension) of at least $44,000, and have been in an executive or high policy-making position for at least two years prior to the retirement date.

Mandatory Retirement of Public Safety Officers and Early Retirement Incentives for Tenured Faculty

State and local governments are permitted to establish maximum hiring ages and mandatory retirement ages for public safety personnel based on their age. Higher education institutions may not force tenured faculty to retire at a certain age, but they are allowed to offer these faculty members early retirement incentive plans that reduce or eliminate benefits based on age.

Resources

Age Discrimination: What Employers Need to Know
This free AARP publication covers age discrimination laws, evolving issues, trends, and age equity in the workplace. It is available in downloadable (pdf) format or in hard copy.

"Disparate Impact" and the ADEA
Learn about the Supreme Court's 2005 ruling in the case of Smith vs. City of Jackson, MS, regarding the concept of "disparate impact."

U.S. Equal Employment Opportunity Commission
Read the text and regulations of the Age Discrimination in Employment Act, as well as information on litigation, compliance guidelines, and statistics on age discrimination cases and resolutions.