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
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.
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.
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