Request By:
Dr. James B. Graham
Superintendent of Public Instruction
Department of Education
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As the Superintendent of Public Instruction you have asked the Office of the Attorney General to consider the effect of the Age Discrimination in Employment Act Amendments of 1978. You noted that under our school laws, specifically KRS 161.720(4), a continuing service contract (tenure) is defined as a contract for the employment of a teacher which after being given shall remain in full force and effect until the teacher resigns, retires or reaches the age of sixty-five. In accordance with this definition a teacher who attains the age of sixty-five reverts to a limited contract status or, that is, a year-to-year consideration for employment and thus may be rehired or not for the next school year at the discretion of the local board of education upon recommendation of the local superintendent of schools. You further stated that many local boards of education have in the past established a policy that no teacher will be reemployed after reaching age sixty-five. Other boards of education have adopted a policy of reviewing each individual case to determine whether a particular teacher will be rehired or terminated. You have requested this office to consider how such policies are affected by the Age Discrimination Act as amended in 1978.
The Age Discrimination in Employment Act Amendments in 1978 (ADEA) was signed by President Carter on April 6, 1978. The effective date of that part of the ADEA amendments pertinent to our consideration here was January 1, 1979. In order to permit the 1978 amendments to have meaning in this opinion, we will highlight some of the provisions of the ADEA and briefly mention the purpose of this federal law.
Section 623(a), 29 U.S.C., concerns employment practices and provides as follows:
"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."
Section 630, 29 U.S.C., is a definitional provision and reads in subsection (b):
"The term 'employer' means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: Provided, That prior to June 30, 1968, employers having fewer than fifty employees shall not be considered employers. The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State, and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States."
Of the 1978 amendments, the change made to the ADEA regarding age limits is most critical. Section 631(a) now reads:
"The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age but less than 70 years of age."
Thus, the original ADEA age limits of 40-60 years of age have been, by the 1978 amendments, increased to 40-70 years of age.
Therefore to this point, we can summarize as follows:
1. The ADEA as amended in 1978 is applicable to school districts as an employer.
2. The 1978 amendments, specifically the age limits, became effective January 1, 1979, so that the 1979-80 school year employment will be the first affected by these federal law provisions.
In considering the effect of the ADEA as amended on school districts in Kentucky, we first note from the legislative history of the 1978 amendments, the background to the ADEA appearing in 1978 U.S. Code Cong. & Adm. News, p. 977, was stated in the following manner:
"The Age Discrimination in Employment Act (ADEA) was enacted to prohibit discrimination in employment on account of age in such matters as hiring, job retention, compensation, and other terms, conditions and privileges of employment. Its purpose is threefold: to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; and to help employers and workers find ways of meeting problems arising from the impact of age on employment."
In the same source at page 976 the stated purpose of the 1978 amendments was "to strengthen and broaden the provisions of the ADEA to insure that older individuals who desire to work will not be denied employment opportunities solely on the basis of age." Against this legislative backdrop we turn first to a consideration of the Age Discrimination in Employment Act Amendments of 1978 regarding certified employes of a local public common school district board of education.
This office on a number of occasions, e.g., OAG 74-454, OAG 73-456, and OAG 73-231, had advised local school boards of the permissibility of adopting a mandatory retirement policy for teachers and administrators upon the reaching of age 65. One thing that is quite certain is that under the ADEA as amended a local board of education may no longer have such a policy. However, our review of the effect of the ADEA on school teachers and administrators cannot end here. As you noted in your letter, we must consider the provisions of KRS 161.720 concerning teacher tenure. KRS 161.720(4) reads:
"The term 'continuing service contract' shall mean a contract for the employment of a teacher which shall remain in full force and effect until the teacher resigns or retires, or reaches the age of sixty-five (65), or until it is terminated or suspended as provided in KRS 161.790 and 161.800."
A teacher becomes eligible for such a continuing contract status by meeting the requirements of KRS 161.740 which basically are holding a certificate issued after graduating from a standard four-year college and being recommended for reemployment after having taught at least four out of six years in a school system. Kentucky's teacher tenure law was first enacted in 1942. In
Gullett v. Sparks, Ky., 444 S.W.2d 901, 903 (1969), the Kentucky Court of Appeals stated that tenure ". . . is a legislatively granted status rather than a real contractual right, . . . ."
The Supreme Court of Kentucky, in Belcher v. Gish, Ky., 555 S.W.2d 264, 266 (1977), a case which considered a teacher mandatory retirement policy at age sixty-five, made the following statement concerning KRS 161.720(4):
"There is no ambiguity in this provision. It is the opinion of this court that it means a continuing service contract ends by operation of law on the sixty-fifth birthday. After age sixty-five the teacher reverts to a non-tenure status, and may be employed at the discretion of the Board of Education upon a limited contract for one year at a time. The cloak of tenure falls from his shoulders, and his reemployment on a yearly basis is dependent on the grace of the board of education. At age seventy the compulsory retirement provision is activated. KRS 161.600. The relation of a teacher and a board of education is contractual. Any legal rights which a teacher has to employment as such must rest on contract. He has no vested right to employment to teach in the absence of contract."
The nub of the problem is whether the legislated continuing status of KRS 161.720(4) which automatically ends upon a teacher reaching age sixty-five can stand when viewed against the ADEA amendments of 1978. It is our opinion that it cannot in that KRS 161.720(4) is inconsistent with the provisions of the federal age discrimination law. Thus, we conclude that a certified employe in Kentucky who attains a continuing service contract (tenure) may, under federal law, hold that tenure status until the teacher resigns or retires or reaches the age of seventy or until the contract is lawfully terminated or suspended.
The basis for this part of our opinion rests on the provision of Section 623(a)(2), 29 U.S.C., supra. An employer may not "limit, segregate, or classify his employes in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employe, because of such individual's age." The end result of KRS 161.720(4) serves at the least to classify teachers in a school system solely upon the happening of reaching age sixty-five which assuredly "adversely affects his (the teacher's) status as an employe." Our school law even uses the term "continuing status" as compared with the status held for a year at a time under a limited contract. See KRS 161.720(5). We believe the federal law as amended gives protection from such a situation to school district certified employes who are in the age range of 40-70 years.
We also believe mention should be made of a strictly constitutional rather than ADEA consideration of a state educational statute very similar to KRS 161.720(4). In
Gault v. Garrison, 569 F.2d 993 (7th Cir. 1977), the federal Court of Appeals looked at an Illinois school statute which provided that teacher tenure was to end at age sixty-five and that any subsequent employment was to be on an annual basis. The Illinois school law also did not afford teachers over sixty-five the extensive procedures which a school board was to follow to dismiss or remove a teacher. Compare KRS 161.750 with KRS 161.790. In looking at this situation on an equal protection claim and after deciding the appropriate test was the traditional rational basis test, the Seventh Circuit Court of Appeals concluded that a classification of public school teachers based upon age without a showing that it rationally furthered some identifiable and articulable state purpose was unconstitutional. The Gault decision was by a split court (two to one). Additionally, in all fairness, the Gault holding was severely disagreed with by the
Second Circuit Court of Appeals in Palmer v. Ticcione, 576 F.2d 459 (2nd Cir. 1978). Irrespective of these cases, we want it understood that our conclusion in this opinion is not based upon a constitutional consideration but upon the specific language of the ADEA with amendments.
We mention a couple of additional points regarding certified employes of a school district and the ADEA. Section 623(f)(3) provides that it is not unlawful for an employer to discharge or otherwise discipline an individual for good cause even though they are within the protected age range. A local board of education may terminate the employment of a teacher under KRS 161.790 within the protected age range based upon individual assessment of the teacher's ability, capabilities, etc. This factor should highlight the need by a local board to develop strong, general personnel policies as well as a policy on the evaluation of certified employes. See KRS 160.340(1)(e) and (f). The board may also desire to adopt a mandatory retirement at age seventy policy for its certified employes which would be consistent with the ADEA as amended and with KRS 161.600. Teachers may be mandatorily retired at the conclusion of the school year in which they reach age 70. See KRS 158.050.
The application of the ADEA as amended in 1978 to classified employes of the local board of education must now be considered. We believe, to begin with the obvious, that as a general proposition a local board of education may not have a policy of refusing to consider for employment or reemployment individuals holding classified positions who are between 40-70 years of age. In that classified school board employes are hired on one-year contracts or on an hourly basis, a board of education may not discriminate or otherwise have any employment practice affecting employes in the protected age range (40-70) which is prompted, motivated or the result of age. However, we do believe there exists support for the continuation of a policy of the State Board for Elementary and Secondary Education that drivers of school buses in a local school district will be between eighteen and sixty-five years of age. See 702 KAR 5:080, Section 3. Our conclusion on this matter rests with the language in 29 U.S.C. § 623(f)(1), which permits an employer to differentiate as to age without violating the law if age is shown to be a "bona fide occupational qualification. " Such a bona fide occupational qualification factor was found to exist for intercity commercial bus drivers based in part on the issue of public safety. See
Hodgson v. Greyhound Lines, Inc., 499 F.2d 859 (7th Cir. 1974). We believe an even more compelling concern for safety argument is available as regards the drivers of our public common school buses. The State Board should give consideration to whether there does exist a rational basis for the age qualification as a bona fide occupational qualification of its present policy for school bus drivers.
Lastly, we ask you, as Superintendent of Public Instruction, to remind all local school boards to comply with the notification by poster requirements of the ADEA. Under the Act each employer is required to keep posted in conspicuous places on its premises a notice advising employes of their rights under this federal law.
Any prior opinions of this office inconsistent with the conclusions reached in this opinion are hereby withdrawn.