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Know Your Rights

Maximum Age Hiring Limits
 

By JAMES A. BROWN
 

Those familiar with the age discrimination laws may question the legality of a maximum age requirement for job applicants. How can a public employer, given the laws protecting older workers, prohibit those older than age 35 from applying for certain employment?  

The answer came last month in a Federal court decision, Feldman v. Nassau County. In Feldman, the Second Circuit Court of Appeals concluded that New York Civil Service Law 58(1)(a), which prohibits an applicant older than 35 years of age from becoming a police officer, does not violate the Federal Age Discrimination in Employment Act ("ADEA").

Age as Protected Class

As reported in "Age-Related Discrimination," my April 9, 2004 column, age discrimination is prohibited under Federal, state and local laws. Because age and good genes) will someday apply to us all, the remedies under Federal law are less extensive that those available under other employment discrimination statutes.

For example, a plaintiff alleging an ADEA violation may not collect damages for emotional distress - a common source for damages in employment discrimination cases. However, a plaintiff alleging an ADEA violation may collect "liquidated damages," in an amount equal to any back-pay recovery, if a willful violation can be established.

Even with these limited remedies, an ADEA claim remains a viable means to redress adverse actions based on age. In Feldman, the plaintiff filed an ADEA claim after the County of Nassau stated that he was too old to become a police officer.

ADEA Exception

The Second Circuit Court of Appeals, in affirming the lawsuit's dismissal, examined the ADEA's application to government employees. The Second Circuit also considered the ADEA's more recent "law-enforcement exception" amendment which effectively made Civil Service Law 58(1)(a), and its maximum age requirement, lawful.

The ADEA, which was enacted in 1967, did not apply to state and local government employees until 1974. In 1985, a Federal appeals court found that New York's maximum age requirement for police officers (which was then 29) violated the ADEA.

In 1996, Congress again amended the ADEA to include its "law-enforcement exception." The exception permits maximum age requirements for employment as a firefighter or a law-enforcement officer provided such age requirements are imposed "pursuant to a bona fide hiring ... plan that is not a subterfuge to evade the purposes of this chapter." Unfortunately, this law-enforcement exception is virtually impossible for older job applicants to overcome in court.

With the existence of the law-enforcement exception, the New York State Legislature in 1999 set a new maximum age requirement for police officers at age 35. Feldman considered whether this new maximum age requirement satisfied the ADEA's law-enforcement exception.

The plaintiff in Feldman was in an unenviable position. He could not simply argue that Civil Service Law 58(1)(a) discriminated against older applicants based on age. In fact, the Court acknowledged that New York's maximum age requirement was discriminatory but that the law-enforcement exception made such discrimination in hiring lawful.

Rather, the plaintiff in Feldman was compelled to demonstrate that Civil Service Law 58(1)(a) constituted a "subterfuge" intended to undermine the age discrimination law in some area unrelated to hiring.

Impossible Burden

Faced with this virtually impossible burden of proof, the plaintiff focused on the purported cost savings the Legislature attributed to the age 35 rule. Thus plaintiff attempted to show the existence of a "subterfuge" by arguing that the maximum age requirement was never intended to strengthen job performance but rather was based on economics - younger employees would defer retirement for longer and thus better justify the costs of cadet training.

The Second Circuit rejected plaintiff's argument. The Court found that the Legislature was not engaged in "subterfuge" by taking into account fiscal considerations when drafting Section 58(1)(a). In the final analysis, the ADEA's law-enforcement exception permits a measure of age discrimination in the police force in the form of Civil Service Law 58(1)(a) and its maximum age requirement.

James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com


 

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