The Age Discrimination in Employment Act and law enforcement

Law Enforcement and Age Discrimination

Ageism is a serious issue for much of the aging workforce here in the United States. As technology, sales, and a plethora of other industries expect more out of a vigorous young workforce, those who cannot produce may be factored out by age restrictions and biases. Even in law enforcement agencies, there are general exemptions to age discrimination laws as set out in the legislation; yet, this is assuming it is for the greater good of a community kept safer by a more capable workforce in some of the most important positions in society.

In the workplace, ageism has become an unfortunate disadvantage to an aging workforce. The research suggests that "in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs" (United States Equal Employment Opportunity Commission 1967). An entire older generation of workers was being forced to retire, often with less than favorable retirement options (Idaho Commission for Human Rights 2007). The whole situation became very problematic. Unfortunately, "the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons" (United States Equal Employment Opportunity Commission 1967).

As a result, restrictions against age discrimination came just in time to help protect the jobs of Baby Boomers across the country. On the heels of other fundamental Civil Rights legislations came a piece of legislation to fight ageism here in the United States among other discriminatory practices based on physical or cultural characteristics. The Age Discrimination in Employment Act of 1967 specifically aims to "prohibit discrimination in employment" (United States Equal Employment Opportunity Commission 1967). After generations of now age discrimination restrictions, Congress decided to add it to a growing list of civil rights legislation being passed during the time period. This joined the ranks of gender and racial discrimination bans. The Act made it illegal "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" (United States Equal Employment Opportunity Commission 1967). This was further solidified in government organizations and agencies with the passing of the Age Discrimination Act of 1975. Essentially, this new piece of legislation aimed at fighting ageism was specifically for the context of government workers. The bill is meant to "prohibit the discrimination on the basis of age in programs or activities receiving Federal financial assistance" (United States Department of Labor 1975). Agencies and organizations under federal funding became under serious review for the age discriminatory practices. Termination of federal funding assistance will occur for those organizations and agencies that are caught discriminating against employees based on grounds of age (United States Department of Labor 1975). This makes ageism within government funded law enforcement agencies much more damaging because if it is found to exist in such agencies, it has the ability to threaten the very government funding that supports such law enforcement efforts, both on a federal and local level.

However, many law enforcement positions are unique in that they demand peak physical condition from those who embody their roles. In fact, a series of amendments to the original 1967 Act were tested, some potentially exempting law enforcement agencies from particular stipulations based on the concept that law enforcement must be physical capable of doing its job, which places older workers at a less productive position (Schiff 1993). In 1974, revisions made "many occupational groups become eligible for mandatory retirement, and when the law became effective in 1978 about 52,000 employees in various federal agencies and the District of Colombia were covered" (Schiff 1993 p 20). Further 1986 amendments continued to encourage the exemption of age discrimination laws in regards to positions within law enforcement agencies based on the greater public need for efficient safety controls. The exemption "was enacted after an extensive debate in Congress whether public safety would be endangered by hiring or maintaining older police officers" (Schiff 1993 p 15). There were those who recommended skipping over such exemptions based on the fact that performance and efficiency in law enforcement roles are better judged on other qualifiers that age as a number limit. Physical capacity was not easy to always put a number on. Even medical assessments were done on an individual assessment basis, and not simply on a diagnosis category within police agencies (Schiff 1993). Subsequently, the exemptions were to be temporary, with the potential for renewal in a few years after testing could be done on potential results in the field. Still, such situations have questioned the nature of age caps within law enforcement agencies as a good strategy for keeping the team fit, or just another execution of age discrimination going unperturbed by current legislation. This complicates the concept of age discrimination, because in such situations it is not arbitrary, which was the main reason for the passing of the Age Discrimination in Employment Act of 1967 (United States Equal Employment Opportunity Commission 1967).

There is something about the nature of law enforcement that has always called for some degree in age restrictions in order to provide the greatest level of security to the people. In such a situation, age discrimination comes into play based on the idea that sometimes older employees are not able to meet the incredible physical demands necessary for their law enforcement positions. In regards to industries where security and a demand for physical fitness is high, many turn towards using age caps as a way to do so. The Age Discrimination in Employment Act of 1967 states that is not illegal to make decisions to remove older workers out of the workforce in situations where "age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business" or "to observe the terms of a bona fide security system" (United States Equal Employment Opportunity Commission 1967). Police agencies simply had too great of a need for physical fitness to put into place such restrictions, according to proponents of exemption policies and practices in continuingly developing legislation. In this regard, "police officers and firefighters must be qualified and competent to do their jobs, just as employees in other professions must be duly competent" (Vance 1986 p 422). Age happens to play a role in physical abilities to a reasonable extent, and thus is thought to be needed in some circumstances to qualify the efficiency of individual officers and employees of law enforcement agencies around the country. Due to the nature police officers play in public safety, "job fitness is a paramount concern" (Vance 1986 p 423). Unfit officers mean a danger to society. This is the concept Congress had in mind while formulating such exemption policies. Additionally, "protective service employers arguing in favor of a hiring age ceiling have presented evidence ostensibly demonstrating that more arrests are made by younger officers" (Vance 1986 p 441). Together, these two powers set the tone for continuing trends in allowing age to be a factor in employment decisions.

More modern cases illustrate an approval of some age discrimination practices in order for the public good. Gross v. FBL Services, Inc. is the current precedent, with Gross suing after he was demoted with his responsibilities being distributed to younger officers, but without a deduction in pay (Sloan 2009). This kept with a theme that age can be use as a contributing influence in such decisions, but it is illegal for age to be the single contribution to demotion or termination decisions. Here, Sloan (2009) writers "age must not be a factor in adverse employment decisions, but rather the only factor" (Sloan 2009). From this perspective, age can be a relevant factor in employment decisions. Yet, the person being terminated or demoted must not be able to show that it was the primary motivation for such an unfavorable employment decision.

However, in such situations like in the law enforcement field, removal based on age should be handled a certain way. Retirement options must be available for those deemed unfit to serve in the law enforcement role because of aging physical capacities in accordance with the Age Discrimination in Employment Act of 1967 (United States Equal Employment Opportunity Commission 1967). For generations, law enforcement agencies have been using ways to encourage early retirement in order to weed out older workers out of their workforce without terminations. The Civil Service Retirement Act of 1930 "allowed voluntary early retirement at age fifty, after at least twenty years of service" (Schiff 1993 p 5). This was often a successful way to help removal of older workers voluntarily. Most law enforcement agencies encourage a retirement age of around fifty-five for police officers and law enforcement agents working directly in the field, where physical capabilities are needed most (Vance 1986). Yet, there have been cases of local agencies using age caps as a way to force workers into retirement and out of the workforce. Many of these have been challenged throughout the years.

In fact, here have been a number of cases challenging age discrimination within this more complicated situation. In the case, EEOC v. City of Janesville an individual fought the fifty-five-year cut off age for police officers in that county (Vance 1986). Opponents of the age cut off argued that age discrimination was acceptable only in "particular business," meaning for police officers on the front line of duty, and was not acceptable in cases where police officers had moved from the field into other positions in the department that required less physical strength and fitness capabilities. However, the opposition was shot down. EEOC v. City of St. Paul was another case where opponents of age discrimination wanted to clarify that the Age Discrimination in Employment Act was not to use simple age guidelines as a way to terminate police officers, but all removal should be based on abilities alone, despite of age (Vance 1986). This was similar to another case, Mahoney v. Trabucco, where "the unanimous opinion expressed the concept that within any particular business, specific conditions may exist requiring separate age limitations" (Vance 1986 p 427). Essentially, age cut offs cannot be used in the same manner across all positions within law enforcement. A police dispatcher does not need to be in the same peak physical condition as a member of the SWAT team, and as such, age discriminatory practices must be reasonable for such positions within law enforcement that do not require necessary physical fitness. The lack of a clear definition of how much of a role age can play makes it difficult to effectively generate more cohesive legal decisions throughout the years in regards to termination or demotion processes dealing with an older workforce population.

Moreover, many law enforcement agencies use age limits in their hiring processes as well. Here, the research suggests that "the use of an age limit in initial protective service hiring has been explained as necessary because of the extended periods of training and the need for availability of career progression in order to attract candidates" (Vance 1986 p 438). When a police officer is hired at an older age, that essentially limits the amount of training that he or she can be exposed to, thus limiting the extent of their career overall. As such, there are age limits in regards to new hires that are practiced throughout law enforcement agencies across the country. As such, "the employer does not want to put time and money into training someone who they plan to retire ten to fifteen years later" (Vance 1986 p 441). Age limits for hiring practices have become the latest controversial trend in law enforcement agencies. This is even witnessed in federal law enforcement agencies as well. According to Bransford (2012), "Congress has specifically said that it wants a young and vigorous workforce in these professions and has authorized a more lucrative retirement system for those who work in the covered field for at least 20 years." This is in order to meet a series of new challenges and demands in an ever changing and technological world environment. Congress has specifically stated that a younger workforce would potentially provide stronger foundations for success in nation and worldwide law enforcement goals.