• David Manes

When can an Employer base an employment decision on age?

Typically an Employer is not allowed to discriminate against an employee on the basis of age under the Age Discrimination in Employment Act (“ADEA”). However, there is an exception under the ADEA where an Employer can refuse to hire or can choose to discharge an individual because of age.

The ADEA prohibits against discriminating against those individuals over 40 years of age. The statute specifically provides:

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.

29 U.S.C. 623(a).

However, a closer glance at the ADEA shows there is an exception to when an Employer can base an employment decision on age. The statute provides:

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 laws of the country in which such workplace is located[.]

29 U.S.C. §623(f).

What is a bona fide occupational qualification (“BFOQ”)?

The ADEA states that an Employer is allowed to use age as a factor in making employment decisions where age is a “bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” A BFOQ is basically a work requirement necessary to the performance of a particular job. As long as a BFOQ is shown to be in good faith, it will not violate the ADEA.

For example, if a 55 year old applies for a job and the Employer denies the individual the job because he/she is too old, the Employer has to prove that being under 55 years of age is necessary to perform the particular position. Real life examples of jobs where age is a BFOQ are: Air Traffic Controller, Bus Drivers and Airline Pilots. These are jobs where being under a certain age is reasonably necessary to perform the job.

It is important to note that just because an Employer says age is a BFOQ doesn’t mean it actually is a BFOQ under the ADEA. For example, if a 55 year old applies for a job as a Receptionist and the Employer says they cannot hire the individual because of their age. That would likely not be considered a BFOQ under the ADEA because that particular position could reasonably be performed by anyone. Being under 55 years of age is not reasonably necessary to perform the job.

#ADEA #BFOQ #BonaFideOccupationalQualification #Discrimination #Age

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