Request By:
Mr. Roger Wm. Perry
Marshall County Attorney
Courthouse
Benton, Kentucky 42025
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You seek our opinion as to whether fiscal court may establish a mandatory retirement age for county employees. It is our understanding that Marshall County is participating in the County Employes Retirement System pursuant to KRS 78.510 et seq. While the normal retirement date for purposes of retirement payments is 65 (KRS 78.510(18)), that provision has no relation to the concept of mandatory retirement. Thus mandatory retirement is really a personnel matter for the fiscal court.
This personnel action would be permissible under KRS 67.080. However the Civil Rights legislation must be carefully observed and applied in establishing such an age requirement. See KRS Chapter 344. Specifically KRS 344.040 provides that it is an unlawful practice for an employer to discharge any individual, or otherwise to discriminate against an individual with respect to his privileges of employment, because of such individual's age between forty (40) and sixty-five (65). The statute also prohibits the employer from classifying his employee in any way which would deprive or tend to deprive an individual of employment opportunities, or otherwise adversely affect his status as an employee, because of such individual's age between forty (40) and sixty-five (65).
The practical effect of the statute is that an employee over age sixty-five (65) is not under the protective umbrella of the statute. So the county's mandatory retirement age could not necessarily be less than age sixty-five (65).
In addition, the fiscal court must observe certain applicable federal age law.
The prohibitions of the Age Discrimination in Employment Acts are limited generally to individuals who are at least forty years of age but less than 70 years of age. 29 U.S.C. § 631(g). The Federal 29 U.S.C. § 631(a). The Federal Act was made applicable to states and political subdivisions of states. 29 U.S.C. § 630(b). Judge Celebrezze for the court, in Gabriele v. Chrysler Corp., (U.S.C.A. -6, 1978) 573 F.2d 649, in describing the Age of Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-34, wrote the "It is remedial legislation, designed to promote employment of older persons based on their ability rather than age, * * * *, and is entitled to a liberal construction."
The ADEA has been viewed by federal courts "As an exercise of congressional authority under § 5 of the Fourteenth Amendment to enforce that amendment's equal protection provisions. * * * * The exercise of congressional authority under this provision, unlike the commerce clause, is not limited by the Tenth Amendment [powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states]." The federal courts adopt the view that the Fourteenth Amendment is a limitation on state power and its enforcement is not an invasion of state sovereignty. Remmick v. Barnes County (U.S.D.C.N.D.S.E. DIV. - 1977) 435 F.Supp. 914, 916. In Fitzpatrick v. Bitzer, 427 U.S. 445, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976) 621, 622, the Supreme Court held that the Eleventh Amendment of the Federal Constitution and the principle of state sovereignty which it embodies [judicial power of the United States does not extend to any suit prosecuted against a state by citizens of another state, etc.] are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment (U.S. Const.).
42 U.S.C. § 6101 prohibits unreasonable discrimination on the basis of age in programs or activities receiving federal financial assistance. Of course regulations to implement this law must adopt the age of 70 as the cutoff level from protection. See 42 U.S.C. § 6103(c)(2), which provides that "Nothing in this chapter shall be construed to amend or modify the Age in Discrimination in Employment Act of 1967 (29 U.S.C. §§ 621-634), as amended, or to affect the rights or responsibilities of any person or party pursuant to such act."
Thus the fiscal court may, under its authority to deal with county personnel matters, enact an ordinance providing a mandatory retirement age for county employees. However, because of the federal law (29 U.S.C. § 631(a)), that retirement age generally cannot be less than age 70. Regardless of KRS 344.040, as to the protective range of 40 to 65, the federal law governs all states and political subdivisions of all the states.
Next, you ask whether the mandatory retirement age may vary from department to department, according to the type of work performed.
Some flexibility under the Federal Age Discrimination Law is afforded in 29 U.S.C. § 623(f)(1), which provides that "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 operation of the particular business, or where the differentiation is based on reasonable factors other than age; * * * *." (Emphasis added).
In Hodgson v. Greyhound Lines, Inc., (U.S.C.A. -7, 1974) 499 F.2d 859, it was contended that Greyhound's hiring policy of taking on no intercity bus drivers 35 and over violated the Age Discrimination in Employment Act of 1967. The court held that the burden was on Greyhound to demonstrate that it had a rational basis in fact to believe that elimination of its maximum hiring age would increase likelihood of risk of harm to the well-being of its passengers and others, and that Greyhound had met its burden. Thus Greyhound's hiring policy was a bona fide occupational qualification reasonably necessary to the operation of its business. The court noted that the thrust of Greyhound's supporting evidence was that the human body undergoes physical and sensory changes beginning around age thirty-five and that these degenerative changes, caused by aging, have a detrimental impact on driving skills. Moreover, these changes are not detectible by a physical examination.
In the related case of Diaz v. Pan. Am. World Airways, Inc., (U.S.C.A. -5, 1971) 442 F.2d 385, the issue was whether the airline's policy of hiring only females for the role of flight cabin attendant violated Title VII of the 1964 Civil Rights Act prohibiting sex discrimination. The court, in ruling against the airline, held that a female was not a bona fide occupational qualification. The court adopted the view that the "bona fide occupational qualification" must be narrowly construed, and that such qualification must be based upon the necessities, not convenience, of the business.
In the related civil rights case of Spurlock v. United Airlines, Inc., (U.S.C.A. -10, 1973) 475 F.2d 216, a black alleged that the airline had unlawfully discriminated against him because of race in refusing to act upon his application for employment as flight officer. The court held that the airline's requirements that applicants for flight officer have a college degree and a minimum of 500 flight hours were job related, and, therefore, constituted lawful preemployment standards, notwithstanding that the company's practices may have been inherently discriminatory. The court wrote that "employment practices which are inherently discriminatory may nevertheless be valid if a business necessity can be shown." (Emphasis added).
As to your question as to whether the mandatory age can vary within departments, the answer is yes, provided the fiscal court can demonstrate that a lower age than 70 is based on the necessities of the governmental function performed. In other words, there must be a bona fide occupational qualification based upon the realities and reasonable necessities of the governmental business performed and its public implications. The courts have held, as noted above, that any variation from the general rule of 70 must be narrowly and rather strictly construed.
Lastly, you ask whether an employee who reaches the mandatory age of retirement in a particular county employment could be transferred to another county activity having a higher retirement age.
Assuming that the department retirement ages are properly set under the above case guidelines, it would be possible that an employee who reaches the mandatory retirement age in one particular employment might be transferred to a county job involving another kind of employment, provided he meets the necessary occupational qualifications, and is under 70.