Contents
Cal Poly Pomona

Age Discrimination

California State Polytechnic University, Pomona

 


The U.S. Equal Employment Opportunity Commission
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The Age Discrimination in Employment Act of 1967
EDITOR'S NOTE: The following is the text of the Age Discrimination in Employment Act of 1967 (Pub. L. 90-202) (ADEA), as amended, as it appears in volume 29 of the United States Code, beginning at section 621. The ADEA prohibits employment discrimina tion against persons 40 years of age or older. The Older Workers Benefit Protection Act (Pub. L. 101-433) amends several sections of the ADEA. In addition, section 115 of the Civil Rights Act of 1991 (P.L. 102-166) amends section 7(e) of the ADEA (29 U. S.C. 626(e)). These amendments appear in boldface type. Cross references to the ADEA as enacted appear in italics following each section heading. Editor's notes also appear in italics.
________________________________________
An Act
To prohibit age discrimination in employment.

Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, that this Act may be cited as the
" Age Discrimination in Employment Act of 1967".

PROHIBITION OF AGE DISCRIMINATION

SEC. 623. [Section 4]

(a) It shall be unlawful for an employer-

(1) to fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of
such individual's age;

(2) to limit, segregate, or classify his employees in any way which
would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee,
because of such individual's age; or

(3) to reduce the wage rate of any employee in order to comply with
this chapter.

(b) It shall be unlawful for an employment agency to fail or refuse to
refer for employment, or otherwise to discriminate against, any individual
because of such individual's age, or to classify or refer for employment
any individual on the basis of such individual's age.

(c) It shall be unlawful for a labor organization-

(1) to exclude or to expel from its membership, or otherwise to
discriminate against, any individual because of his age;

(2) to limit, segregate, or classify its membership, or to classify
or fail or refuse to refer for employment any individual, in any way which
would deprive or tend to deprive any individual of employment
opportunities, or would limit such employment opportunities or otherwise
adversely affect his status as an employee or as an applicant for
employment, because of such individual's age;

(3) to cause or attempt to cause an employer to discriminate
against an individual in violation of this section.

(d) It shall be unlawful for an employer to discriminate against any of
his employees or applicants for employment, for an employment agency to
discriminate against any individual, or for a labor organization to
discriminate against any member thereof or applicant for membership,
because such individual, member or applicant for membership has opposed
any practice made unlawful by this section, or because such individual,
member or applicant for membership has made a charge, testified, assisted,
or partici pated in any manner in an investigation, proceeding, or
litigation under this chapter.

(e) It shall be unlawful for an employer, labor organization, or
employment agency to print or publish, or cause to be printed or
published, any notice or advertisement relating to employment by such an
employer or membership in or any classification or referral for
employment by such a labor organization, or relating to any classification
or referral for employment by such an employment agency, indicating any
preference, limitation, specification, or discrimination, based on age.

(f) It shall not be unlawful for an employer, employment agency, or labor
organization-

(1) to take any action otherwise prohibited under subsections (a),
(b), (c), or (e) of this section where age is a bona fide occupational
qualification reasonably necessary to the normal operation of the
particular business, or where the differentiation is based on reasonable
factors other than age, or where such practices involve an employee in a
workplace in a foreign country, and compliance with such subsections would
cause such employer, or a corporation controlled by such employer, to
violate the la ws of the country in which such workplace is located;

(2) to take any action otherwise prohibited under subsection (a), (b),
(c), or (e) of this section-

(A) to observe the terms of a bona fide seniority system that is
not intended to evade the purposes of this chapter, except that no such
seniority system shall require or permit the involuntary retirement of any
individual specified by section 631(a) of this title because of the age of
such individual; or

(B) to observe the terms of a bona fide employee benefit plan-

(i) where, for each benefit or benefit package, the actual amount
of payment made or cost incurred on behalf of an older worker is no less
than that made or incurred on behalf of a younger worker, as permissible
under section 1625.10, title 29, Code of Federal Regulations (as in
effect on June 22, 1989); or

(ii) that is a voluntary early retirement incentive plan consistent
with the relevant purpose or purposes of this chapter. Notwithstanding
clause (i) or (ii) of subparagraph (B), no such employee benefit plan or
voluntary early retirement incentive plan shall excuse the failure to hire
any individual, and no such employee benefit plan shall require or permit
the involuntary retirement of any individual specified by section 631(a)
of this title, because of the age of such individual. An employer,
employment agency, or labor organization acting under subparagraph (A), or
under clause (i) or (ii) of subparagraph (B), shall have the burden of
proving that such actions are lawful in any civil enforcement proceeding
brought under this chapter; or

(3) to discharge or otherwise discipline an individual for good
cause.

(g) [Repealed]

(h) (1) If an employer controls a corporation whose place of
incorporation is in a foreign country, any practice by such corporation
prohibited under this section shall be presumed to be such practice by
such employer.

(2) The prohibitions of this section shall not apply where the
employer is a foreign person not controlled by an American employer.

(3) For the purpose of this subsection the determination of whether
an employer controls a corporation shall be based upon the-

(A) interrelation of operations,

(B) common management,

(C) centralized control of labor relations, and

(D) common ownership or financial control, of the employer and the
corporation.

(i) It shall not be unlawful for an employer which is a State, a political
subdivision of a State, an agency or instrumentality of a State or a
political subdivision of a State, or an interstate agency to fail or
refuse to hire or to discharge any individual because of such
individual's age if such action is taken-

(1) with respect to the employment of an individual as a
firefighter or as a law enforcement officer and the individual has
attained the age of hiring or retirement in effect under applicable State
or local law on March 3, 1983, and

(2) pursuant to a bona fide hiring or retirement plan that is not a
subterfuge to evade the purposes of this chapter.

(j) (1) Except as otherwise provided in this subsection, it shall be
unlawful for an employer, an employment agency, a labor organization, or
any combination thereof to establish or maintain an employee pension
benefit plan which requires or permits-

(A) in the case of a defined benefit plan, the cessation of an
employee's benefit accrual, or the reduction of the rate of an employee's
benefit accrual, because of age, or

(B) in the case of a defined contribution plan, the cessation of
allocations to an employee's account, or the reduction of the rate at
which amounts are allocated to an employee's account, because of age.

(2) Nothing in this section shall be construed to prohibit an
employer, employment agency, or labor organization from observing any
provision of an employee pension benefit plan to the extent that such
provision imposes (without regard to age) a limitation on the amount of
benefits that the plan provides or a limitation on the number of years of
service or years of participation which are taken into account for
purposes of determining benefit accrual under the plan.

(3) In the case of any employee who, as of the end of any plan year
under a defined benefit plan, has attained normal retirement age under
such plan-

(A) if distribution of benefits under such plan with respect to
such employee has commenced as of the end of such plan year, then any
requirement of this subsection for continued accrual of benefits under
such plan with respect to such employee during such plan year shall be
treated as satisfied to the extent of the actuarial equivalent of
in¬service distribution of benefits, and

(B) if distribution of benefits under such plan with respect to
such employee has not commenced as of the end of such year in accordance
with section 1056(a)(3) of this title [section 206(a)(3) of the
Employee Retirement Income Security Act of 1974] and section
401(a)(14)(C) of title 26 [the Internal Revenue Code of 1986], and
the payment of benefits under such plan with respect to such employee is
not suspended during such plan year pursuant to section 1053(a)(3)(B) of
this title [section 203(a)(3)(B) of the Employee Retirement Income
Security Act of 1974] or section 411(a)(3)(B) of title 26 [the
Internal Revenue Code of 1986], then any requirement of this
subsection for continued accrual of benefits under such plan with respect
to such employee during such plan year shall be treated as satisfied to
the extent of any adjustment in the benefit payable under the plan during
such plan year attributable to the delay in the distribution of benefits
after the attainment of normal retirement age.

The provisions of this paragraph shall apply in accordance with
regulations of the Secretary of the Treasury. Such regulations shall
provide for the application of the preceding provisions of this paragraph
to all employee pension benefit plans subject to this subsection and may
provide for the application of such provisions, in the case of any such
employee, with respect to any period of time within a plan year.

(4) Compliance with the requirements of this subsection with
respect to an employee pension benefit plan shall constitute compliance
with the requirements of this section relating to benefit accrual under
such plan.

(5) Paragraph (1) shall not apply with respect to any employee who
is a highly compensated employee (within the meaning of section 414(q) of
title 26 [the Internal Revenue Code of 1986]) to the extent
provided in regulations prescribed by the Secretary of the Treasury for
purposes of precluding discrimination in favor of highly compensated
employees within the meaning of subchapter D of chapter 1 of title 26
[the Internal Revenue Code of 1986].

(6) A plan shall not be treated as failing to meet the requirements
of paragraph (1) solely because the subsidized portion of any early
retirement benefit is disregarded in determining benefit accruals.

(7) Any regulations prescribed by the Secretary of the Treasury
pursuant to clause (v) of section 411(b)(1)(H) of title 26 [the
Internal Revenue Code of 1986] and subparagraphs (C) and (D) of
section 411(b)(2) of title 26 [the Internal Revenue Code of 1986]
shall apply with respect to the requirements of this subsection in the
same manner and to the same extent as such regulations apply with respect
to the requirements of such sections 411(b)(1)(H) and 411(b)(2).

(8) A plan shall not be treated as failing to meet the requirements
of this section solely because such plan provides a normal retirement age
described in section 1002(24)(B) of this title [section 3(24)(B) of the
Employee Retirement Income Security Act of 1974] and section
411(a)(8)(B) of title 26 [the Internal Revenue Code of 1986].

(9) For purposes of this subsection-

(A) The terms ``employee pension benefit plan'', ``defined benefit
plan'', ``defined contribution plan'', and ``normal retirement age'' have
the meanings provided such terms in section 1002 of this title [section
3 of the Employee Retirement Income Security Act of 1974].

(B) The term ``compensation'' has the meaning provided by section
414(s) of title 26 [the Internal Revenue Code of 1986].

(k) A seniority system or employee benefit plan shall comply
with this chapter regardless of the date of adoption of such system or
plan.

(l) Notwithstanding clause (i) or (ii) of subsection (f)(2)(B) of
this section-

(1) It shall not be a violation of subsection (a), (b), (c), or (e)
of this section solely because-

(A) an employee pension benefit plan (as defined in section 1002(2)
of this title [section 3(2) of the Employee Retirement Income Security
Act of 1974]) provides for the attainment of a minimum age as a
condition of eligibility for normal or early retirement benefits; or

(B) a defined benefit plan (as defined in section 1002(35) of this
title [section 3(35) of such Act]) provides for-

(i) payments that constitute the subsidized portion of an early
retirement benefit; or

(ii) social security supplements for plan participants that
commence before the age and terminate at the age (specified by the plan)
when participants are eligible to receive reduced or unreduced
old¬age insurance benefits under title II of the Social Security Act
(42 U.S.C. 401 et seq.), and that do not exceed such old¬age
insurance benefits.

(2) (A) It shall not be a violation of subsection (a), (b), (c), or
(e) of this section solely because following a contingent event unrelated
to age

(i) the value of any retiree health benefits received by an
individual eligible for an immediate pension;

(ii) the value of any additional pension benefits that are made
available solely as a result of the contingent event unrelated to age and
following which the individual is eligible for not less than an immediate
and unreduced pension; or

(iii) the values described in both clauses (i) and (ii); are
deducted from severance pay made available as a result of the contingent
event unrelated to age.

(B) For an individual who receives immediate pension benefits that
are actuarially reduced under subparagraph (A)(i), the amount of the
deduction available pursuant to subparagraph (A)(i) shall be reduced by
the same percentage as the reduction in the pension benefits.

(C) For purposes of this paragraph, severance pay shall include
that portion of supplemental unemployment compensation benefits (as
described in section 501(c)(17) of title 26 [the Internal Revenue Code
of 1986]) that-

(i) constitutes additional benefits of up to 52 weeks;

(ii) has the primary purpose and effect of continuing benefits
until an individual becomes eligible for an immediate and unreduced
pension; and

(iii) is discontinued once the individual becomes eligible for an
immediate and unreduced pension.

(D) For purposes of this paragraph and solely in order to make the
deduction authorized under this paragraph, the term ``retiree health
benefits'' means benefits provided pursuant to a group health plan
covering retirees, for which (determined as of the contingent event
unrelated to age)-

(i) the package of benefits provided by the employer for the
retirees who are below age 65 is at least comparable to benefits provided
under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.);

(ii) the package of benefits provided by the employer for the
retirees who are age 65 and above is at least comparable to that offered
under a plan that provides a benefit package with one¬fourth the
value of benefits provided under title XVIII of such Act; or

(iii) the package of benefits provided by the employer is as
described in clauses (i) and (ii).

(E) (i) If the obligation of the employer to provide retiree health
benefits is of limited duration, the value for each individual shall be
calculated at a rate of $3,000 per year for benefit years before age 65,
and $750 per year for benefit years beginning at age 65 and above.

(ii) If the obligation of the employer to provide retiree health
benefits is of unlimited duration, the value for each individual shall be
calculated at a rate of $48,000 for individuals below age 65, and $24,000
for individuals age 65 and above.

(iii) The values described in clauses (i) and (ii) shall be
calculated based on the age of the individual as of the date of the
contingent event unrelated to age. The values are effective on October 16,
1990, and shall be adjusted on an annual basis, with respect to a
contingent event that occurs subsequent to the first year after October
16, 1990, based on the medical component of the Consumer Price Index for
all¬urban consumers published by the Department of Labor.

(iv) If an individual is required to pay a premium for retiree
health benefits, the value calculated pursuant to this subparagraph shall
be reduced by whatever percentage of the overall premium the individual is
required to pay.

(F) If an employer that has implemented a deduction pursuant to
subparagraph (A) fails to fulfill the obligation described in subparagraph
(E), any aggrieved individual may bring an action for specific performance
of the obligation described in subparagraph (E). The relief shall be in
addition to any other remedies provided under Federal or State law.

(3) It shall not be a violation of subsection (a), (b), (c), or (e)
of this section solely because an employer provides a bona fide employee
benefit plan or plans under which long¬term disability benefits
received by an individual are reduced by any pension benefits (other than
those attributable to employee contributions)-

(A) paid to the individual that the individual voluntarily elects
to receive; or

(B) for which an individual who has attained the later of age 62 or
normal retirement age is eligible.