The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.


Title: Age / Mandatory Retirement

February 2, 2000

Dear

This is in reply to your letter of December 10, 1999, requesting an formal opinion of the Equal Employment Opportunity Commission (EEOC) relating to the retirement of a Terre Haute policy officer. As stated in EEOC's regulation at 29 C.F.R. § 1626.17(b), issuance of a formal opinion letter by EEOC is discretionary. Since the facts of the opinion letter request are limited to one individual, and the request itself does not provide sufficient information regarding Indiana and Terre Haute statutes, EEOC must respectfully decline to issue a formal opinion. However, as provided in 29 C.F.R. § 1626.17(c), EEOC will provide informal advice that would provide guidance to you with regard to the mandatory retirement of police officers. This advice may not be formally relied upon by any employer within the meaning of EEOC's regulations.

EEOC enforces the Age Discrimination in Employment Act of 1967 (ADEA). For the most part, the mandatory retirement of any individual age 40 or above violates the ADEA. Section 4(a)(1) of the ADEA, 29 U.S.C. § 623(a)(1), makes it unlawful for an employer to discharge any employee (including school bus drivers) on account of age. However, on September 30, 1996, President Clinton signed into law the Age Discrimination in Employment Amendments of 1996, section 119 of H.R. 3610. The amendments were codified in section 4(j) of the ADEA. We are enclosing for your information a copy of section 119.

The 1996 legislation permits public employers to have maximum hiring ages and mandatory retirement ages for law enforcement officers and firefighters. The statute sets out limitations of such ages (for example, the mandatory retirement must be required by state or local law). You indicate in your letter that the Indiana law at issue predates the ADEA (that is, was enacted before 1967). If that is the case, the age-70 mandatory retirement age appears to meet the requirements of section 4(j) of the ADEA. If, on the other hand, the state statute was enacted after March 3, 1983, you would need to review section 4(j) in detail to determine whether or not the state law is entitled to the exemption in that section.

Finally, nothing in the ADEA requires the retirement of police officers at age 70. The exemption in section 4(j) is permissive, not mandatory. Therefore, we take no position regarding the effect of Indiana state law on the City of Terre Haute and the retirement of

We hope this information has been helpful.

Sincerely,


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