AELE LAW LIBRARY OF CASE SUMMARIES:
Employment & Labor Law for Public Safety Agencies
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Age Discrimination - Entry
A federal appeals court, ruling en banc, has held that the Age Discrimination in Employment Act applies only to current employees and does not protect outside job applicants against age discrimination, based on the plain language of the law. The court made its ruling by an 8-4 vote. In the case a 58-year-old applicant with over 25 years of extensive relevant experience was not hired for a position as a general counsel for the employer, a large private corporation. Instead, the employer hired a 29-year-old applicant with more limited experience for the job. The ruling overturned a prior decision in the plaintiff’s favor by a three-judge appeals court panel that would have allowed the plaintiff’s claim to move forward. The new ruling affirmed a dismissal of the lawsuit by the trial court. While the ruling came in a case involving a private employer, the reasoning would also apply to claims by applicants for jobs with public employers. Kleber v. CareFusion Corporation, 2019 U.S. App. Lexis 2192 2019 WL 290241 (7th Cir.).
A man claimed that he was improperly rejected for a job as a Criminal Investigator with the U.S. Postal System in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq. A federal appeals court, overturning the trial court’s dismissal of the ADEA claim, found that the plaintiff had adequately alleged a prima facie case of discrimination where he demonstrated that he had the educational and professional experience required for the position and was in the protected category (over 40). McPherson v. Brennan, #17-2098, 2018 U.S. App. Lexis 10959 (8th Cir.).
Cities
that participate in a statewide police pension fund are subject to its age
requirements. The trial court properly dismissed an age bias lawsuit of an applicant
who was rejected for being over age 45. 29 U.S. Code §623(j) "provides
that it shall not be unlawful for a local government to refuse to hire a person
for a law enforcement position on the basis of age, if that person is over the
maximum age of hire that the local government had in effect for that position
as of March 3, 1983 ..." Kannady v. City of Kiowa, #07-7002, 590 F.3d
1161, 2010 U.S. App. Lexis 229 (10th Cir.).
Montana Supreme Court strikes down an age 34
upper limit for firefighters. It violated the equal protection clause of the
state's constitution. Jaksha v. Butte-Silver Bow County, #DA 08-0457, 2009 MT
263, 214 P.3d 1248, 2009 Mont. Lexis 398, 106 FEP Cases (BNA) 174.
A state statute imposing 34-year-old age limit on firefighter
hiring violated the equal protection clause of the Montana Constitution. The
statute’s legislative history was not supported by any empirical studies to
justify the cut-off point at 34 years and the claim that period of productivity
of a firefighter over 34 might be shorter was not a safety concern. Jaksha v.
Butte-Silver Bow Co., #DA 08-0457, 2009 MT 263, 352 Mont. 46, 106 FEP Cases
(BNA) 1746, 2009 Mont. Lexis 398.
It was not a violation
of the ADEA for a state police agency to decline to rehire a trooper over age
40 who quit and 2 months later applied for reinstatement, because the plaintiff
is past the age for new appointees. If, however, management has overlooked the
age requirement in past instances, "the decision not to rehire him was not
made pursuant to a bona fide plan." Davis v. Indiana State Police,
#07-2543, 2008 U.S. App. Lexis 8811 (7th Cir.).
Fifth Circuit affirms the dismissal of an ADEA
action brought by a 49-year-old rejected police applicant. He gave unacceptable
answers to hypothetical police scenarios and appeared unable to logically
process information. Joseph v. City of Dallas, #07-11235, 2008 U.S. App. Lexis
9742 (Unpub. 5th Cir.).
Second Circuit upholds a N.Y. statutory age limit
of 35 for new police officers; the law does not violate the ADEA. In 1986 the
Congress amended the ADEA to provide state and local governments an exception
covering the employment of law enforcement officers and firefighters. Pub. L.
99-592, 100 Stat. 3342, codified at 29 U.S. Code §623(i). Feldman v. Nassau
County, #05-0444, 434 F.3d 177, 2006 U.S. App. Lexis 453, 97 FEP Cases (BNA)
449 (2d Cir. 2006). {N/R}
Rejection of a 51-year-old police applicant
because he was over the maximum age of 35 "was rationally related to the
legitimate state interest of conserving financial resources, as well as
ensuring a physically capable police force ... and fell within the ADEA's law
enforcement exception." Feldman v. Nassau Co. Police Dept., #04-CV-0900,
349 F.Supp.2d 528, 2004 U.S. Dist. Lexis 25054 (E.D.N.Y. 2004). {N/R}
Federal court upholds a maximum entry age of 35
for police officers in New York. Feldman v. Nassau Co., #04-CV-0900, 2004 U.S.
Dist. Lexis 25054 (E.D.N.Y. 2004). {N/R}
A 74-year-old Philadelphia police recruit, who
was removed from the academy after failing firearms and running tests, loses
his age discrimination lawsuit. Brophy v. City of Philadelphia Police Dept.,
#03-CV-4139, 2004 U.S. Dist. Lexis 14665 (E.D. Pa. 2004). [2004 FP Nov]
Federal appeals court upholds maximum entry age
of 32 for Boston police officers. Donohue v. City of Boston, #03-2227, 2004
U.S. App. Lexis 11204 (1st Cir. 2004).{N/R}
Federal appeals court disallows a civil rights
suit filed by a firefighter applicant who was rejected because he was over age
36; he lacked a property interest in a prospective position as a city
firefighter. Moore v. Muncie Police and Fire Cmsn., #01-3175, 312 F.3d 322,
2002 U.S. App. Lexis 24598 (7th Cir. 2002). {N/R}
The fact that a police applicant is presently too
old under state law to be appointed does not prevent him from recovering for
race discrimination, as he was under the maximum age when he was not hired.
O'Neal v. City of New Albany, #00-3091, 2002 U.S. App. Lexis 11740 (7th Cir.
2002). {N/R}
Federal court refuses to dismiss an ADEA suit by
a 61-year-old police applicant. Purdy v. Town of Greenburgh, #00 Civ. 4363, 178
F.Supp.2d 439 (S.D.N.Y. 200). [N/R]
Older firefighter who failed to pass a
college-based fire academy could bring federal and state age bias claims
against the academy, even though he was not an employee of the college. Claims
against the city and union also survive a motion to dismiss. Tyrrell v. City of
Scranton, #3:CV-00-0738, 2001 U.S. Dist. Lexis 3419, 134 F.Supp.2d 373 (M.D.Pa.
3/2/2001). [2001 FP 51]
Dropping a woman applicant from the firefighter
eligibility list after she reached the maximum age of 35 did not violate Title
VII. The city's home rule ordinance prevailed over state law. Demick v. City of
Joliet, 135 F.Supp.2d 921 (N.D. Ill.). {N/R}
Police Dept. lawfully rejected a 45-year-old
applicant because the 1996 amendment to the ADEA was retroactive to 1993 and
extinguished his claim. Kopec v. Elmhurst, #98-858, 193 F.3d 894, 1999 U.S.
App. Lexis 24657, 80 FEP Cases (BNA) 1842 (7th Cir. 1999). {N/R}
A new Massachusetts law sets the maximum age for
appointment as a local firefighter or police officer at 32, extended for up top
4 years for active military service. General Laws Ch. 31 Sec. 58 (8-10-00).
{N/R}
Two 60 year-old former L.A. police cadets recover
$1,950,000 for age bias; both had been terminated for allegedly harassing women
cadets. LaGorio {and Robinson} v. City of Los Angeles, L.A. Super.Ct., 37
(1800) G.E.R.R. (BNA) 221; p. B-1 L.A. Times, Art. #0990014381, 2/15/99. [1999
FP 51]
Federal court in NYC upholds maximum entry age of
35. 1996 ADEA public safety exception is controlling; Equal Protection claims
fail. Peterson v. City of N.Y., 1998 U.S. Dist. Lexis 7082 (S.D.N.Y.). [1998 FP
115]
Federal court refuses to dismiss suit of a 49
year-old applicant who allegedly was rejected because he was
"overqualified." Hamm v. NYC Comptroller, 1998 U.S. Dist. Lexis 2345
(S.D.N.Y.). [1998 FP 68]
Congress amends the ADEA to allow governmental
public safety agencies to impose a maximum entry age. Age Discrimination
Amendment, 29 U.S. Code 623(j), 142 (137-1) Congressional Record H11651
(9/28/96). [1997 FP 3]
EEOC prevails in attacking a maximum entry age
requirement of N.Y. State Parks Police. EEOC v. New York, 1996 U.S.Dist. Lexis
9595 (S.D.N.Y.). [1997 FP 3]
Federal appeals court upholds rejection of an
"overqualified" applicant; probable job dissatisfaction is a
legitimate basis for exclusion. EEOC v. Ins. Co. of Amer., 49 F.3d 1418 (9th
Cir. 1995). [1995 FP 83]
41-year-old LAPD academy ex-trainee wins $814,000
for allegedly age-biased proficiency scores, resulting in his termination.
DeTeresi v. City of Los Angeles, L.A.Co. Docket #BC052988; 107 (223) L.A.D.J.
{V&S} 6. (Super.Ct. 1994). [1995 FP 35]
Applicant who lacked educational requirements for
appointment as a police officer could not recover against the city for age
discrimination, even if the city arbitrarily rejected him because of his age.
Civ. Serv. Cmsn. v. Iowa (Montz), 522 N.W.2d 82 (1994). [1995 FP 55-6]
New York abolishes age 29 maximum for
police officers. Statutory revision allows the state's Civil Service Cmsn. to
approve age requirements that are reasonable minimum qualifications for the job.
N.Y.L. 1994 Ch. 278, 32 (1573) G.E.R.R. (BNA) 883. {N/R}
When computing whether an ADEA suit is timely
filed, the claim accrues as of the date the applicant is passed over in favor
of a younger person, and not the earlier date his name was removed from the
eligibility list. Petrelli v. City of Mount Vernon, 9 F.3d 250 (2nd Cir. 1993).
{N/R}
Federal court orders a city to hire a 40-year old
officer because it did not have a maximum age limitation on 3-3-83. Petrelli v.
City of Mt. Vernon, 796 F.Supp. 748 (S.D.N.Y. 1992). [1993 FP 51]
Federal court rules a person attains a specific
age on his or her birthday, not before. Bailey v. City of Lawrence, 972 F.2d
1447 (7th Cir. 1992). [1993 FP 51]
Federal court orders a city to hire a 40-year-old
officer because it did not have a maximum age limitation on 3-3-83. Petrelli v.
City of Mt. Vernon, 796 F. Sup. 748 (S.D.N.Y. 1992). [1993 FP 51]
Specific state law setting maximum age for
appointment of police officers supersedes a general state law prohibiting age
discrimination. Constantine v. White, 569 N.Y.S.2d 765 (A.D. 1991). [1992 FP
99]
Federal appeals court holds that a refusal to
hire a person because he is "overqualified" can be a "code
word" for "too old." A jury could find that the reason masks a
discriminatory purpose. Taggart v. Time, Inc., 924 F.2d 43, 54 FEP Cases (BNA)
1628 (2nd Cir. 1991). {N/R}
State law setting maximum age for firefighters at
30 did not violate the Equal Protection Clause. Timerman v. Bence, 576 N.Y.S.2d
714 (A.D. 1991). {N/R}
Appellate court holds that age of an applicant at
time of application, not age at the time of a later scheduled exam, is to be
used for minimum age purposes. Smithwick v. Levitt, 546 N.Y.S.2d 346 (A.D.
1989).
Federal court strikes down maximum entry age of
40 law in suit by applicants for state conservation officers. EEOC v. State of
W. Va. Civil Service Cmsn., 45 FEP Cases (BNA) 781, 675 F.Supp. 1021 (S.D.
W.Va. 1987).
Federal court refuses to enjoin city over maximum
entry age of 31 years in Ohio fire department. Munteanu v. City of Barberton,
655 F.Supp. 1357, 43 FEP Cases (BNA) 769 (N.D. Ohio, 1987).
EEOC settles age discrimination lawsuit against
city of St. Louis Fire Department. EEOC v. City of St. Louis, U.S. Dist. Ct.
(E.D. Mo. 7/2/87).
Federal appeals court upholds New York's maximum
age of 29 in suit by 30 year-old. Federal law not applicable. Doyle v. Suffolk
County, 786 F.2d 523 (2d Cir. 1986).
Indiana declines to order city to employ a 36-year
old applicant; federal law did not apply. Sobieralski v. City of South Bend,
479 N.E.2d 98 (Ind.App. 1985); Rotach v. Connelie, 479 N.Y.S.2d 791 (A.D.
1984).
Michigan holds that age majority act did not
entitle 19-year-olds to apply for police and fire positions. Mich. Dept. of
Civil Rights v. City of Warren, 355 N.W.2d 687 (Mich. App. 1984).
Maximum entry age of 29 in N.Y. is discriminatory
but not unlawful as to applicants 30 to 39, but violates ADEA for those over
40. Karney v. Clark, 596 F.Supp. 940 (W.D. N.Y. 1984).
Federal appeals court upholds maximum entry age
of 45 for police officers. EEOC v. Univ. of Texas, 710 F.2d 1091 (5th Cir.
1983).
Federal court throws out Pennsylvania state
statute setting maximum age of 35 for police applicants. EEOC v. County of
Alleghany, 519 F.Supp. 1328 (W.D. Pa. 1981), aff'd 705 F.2d 679 (3rd Cir.
1983).
Maximum entry age of 30 for firefighters rejected
by Oregon appellate court. Civil Serv. Bd. of Portland v. Bureau of Labor, 61
Or.App. 70, 655 P.2d 1080 (1982). {N/R}
Federal court upholds law setting maximum entry
age at 29 when applicants in thirties are rejected. Colon v. City of New York,
535 F.Supp. 1108 (S.D.N.Y. 1982).
District court finds applicants have proved that
maximum entry age of 35 in fire and law enforcement violates federal law. Equal
Employment Opportunity Commission v. County of Los Angeles, 526 F.Supp. 1135
(C.D. Cal. 1981), aff'd 706 F.2d 1039.
Maximum appointment age of 36 upheld by Texas
appellate court; BFOQ found on expert testimony. Poteet v. City of Palestine,
620 S.W.2d 182 (Tex. Civ. App. 1981).
Maximum appointment age of 29 struck down as
irrational and subject to impermissible exceptions. McMahon v. Barclay, 510
F.Supp. 1114 (S.D. N.Y. 1981).
Virginia Beach consent decree protects police
applicants between ages 40 and 70. EEOC v. City of Virginia Beach, Civil
#79-557-N (E.D. Va. 1980).
Federal Appeals court upholds West Virginia
maximum age limitation for appointment to police forces. Arritt v. Grissell,
567 F.2d 1267 (4th Cir. 1977).
City required to employ 54-year-old parking
enforcement applicant. New York City Dept. of Personnel v. New York St. Div. of
Human Rights, 396 N.Y.S.2d 845 (A.D. 1977).