Statutory Age Limit for Hiring Police Officers: Not Subterfuge to Evade ADEA

The Age Discrimination in Employment Act generally protects individuals over forty from age discrimination in employment. As originally enacted in 1967, ADEA did not apply its antidiscrimination principle to employees of state and local governments. The statute was amended, however, in 1974 to cover employees of state and local governments. Two years later, the U.S. Supreme Court decided that the Tenth Amendment to the Constitution prohibited imposition of wage and hour restrictions of the Fair Labor Standards Act on state and local governments. It was unclear whether the Tenth Amendment similarly deprived Congress of authority to mandate that states and localities comply with requirements of ADEA. The U.S. Supreme Court addressed that question, holding that ADEA could be applied to state law enforcement officers. Thus, states and localities were subject to ADEA and were required to show that age was a bona fide occupational qualification in order to use age limitations in hiring law enforcement officers. In other words, states and localities had to satisfy the same standard as private employers to justify using age as a criterion in employment decisions. In 1986, Congress amended the ADEA to provide state and local governments an exception covering employment of law enforcement officers and firefighters. The amendment permits state and local governments that had age restrictions for firefighters and law enforcement officers in place on March 3, 1983, to continue to apply those restrictions. The amendment included a provision repealing the exception on December 31, 1983, whereupon the BFOQ standard once again applied to employment of firefighting and law enforcement personnel. In 1996, Congress again amended ADEA and reinstated a law enforcement exception. That exception is like the 1986 exception, but applies retroactively to termination of the 1986 exception and without an expiration date. The 1996 exception permits states and political subdivisions, under certain circumstances, to engage in age discrimination with respect to hiring and firing of firefighters or law enforcement officers. The exception can absolve a state or local government of liability under ADEA for an age limit in law enforcement hiring, regardless of whether that age limit was in existence under local law on March 3, 1983, or whether it was enacted after the 1996 ADEA amendments that reinstated the law enforcement exception. By its terms, the law requires that the relevant age limitation be a bona fide hiring plan that is not a subterfuge to evade the purposes of ADEA. Feldman challenged New York’s Civil Service Law, which prohibits an applicant who is over thirty-five years of age at the time he sits for the Civil Service examination from becoming a police officer. On appeal from a U.S. district court order of dismissal, the U.S. Court of Appeals for the Second Circuit affirmed. To challenge a bona fide law enforcement hiring plan under ADEA, Feldman bore the burden of establishing that the plan is being used as a subterfuge, in other words, in a discriminatory manner forbidden by a substantive provision of the statute not directly covered by the exception. Feldman did not meet that burden because he alleged no facts indicating that New York’s Civil Service Law is anything other than what it purports to be—an age restriction on hiring of police officers and firefighters under the statutory exception. No allegations in Feldman’s complaint suggest that the New York legislature exceeded its authority under the statutory exception by engaging in a kind of discriminatory conduct that ADEA by its very terms forbids. (Basically, Feldman alleged that the New York State legislature impermissibly relied on an “economic rationale” in enacting its age limitation.) Feldman v. Nassau County, 434 F.3d 177 (2d Cir. 2006).

—Stephen H. Cypen, Cypen & Cypen,
Miami Beach , Florida