Could Maryland force State Police officers and correctional officers to retire at a fixed age under 1980s federal age discrimination law?

Plain-English summary

The Board of Trustees for Maryland State Retirement and Pension Systems asked whether Maryland statutes requiring mandatory retirement of State Police at age 60 and certain correctional officers and maximum security attendants at age 62 could still be enforced in light of the federal Age Discrimination in Employment Act (ADEA). The opinion traced how the Supreme Court's 1983 decision in EEOC v. Wyoming settled a prior constitutional dispute by confirming that the ADEA validly applies to state and local governments, meaning Maryland's mandatory retirement laws had to be tested against the ADEA's standards. Under the ADEA, an employer can only maintain age-based mandatory retirement by proving a narrow "bona fide occupational qualification" defense, either that the age cutoff is essential to the job or that there is a factual basis for believing that all or substantially all employees past that age cannot safely perform the job and cannot practically be evaluated individually. Surveying case law from other states where similar mandatory retirement rules for police and public safety officers had failed this test, the opinion concluded that, absent clear evidence supporting such a defense for Maryland's State Police and correctional officers, the state's mandatory retirement statutes directly conflicted with the ADEA and could not be enforced.

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could Maryland force State Police officers and correctional officers to retire at a fixed age under 1980s federal age discrimination law?
According to this 1984 opinion, no, absent proof of a narrow exception. The Attorney General concluded that Maryland's mandatory retirement statutes for State Police (age 60) and certain correctional officers and maximum security attendants (age 62) conflicted with the federal ADEA and should not be enforced.

What would Maryland have had to prove to justify these mandatory retirement ages?
The opinion explained that the state would have had to establish a "bona fide occupational qualification" defense, showing either that the age limit was reasonably necessary to the job or that there was a factual basis for believing all or substantially all employees past that age could not safely and efficiently do the job and could not practically be evaluated on an individual basis. The opinion noted this is an "extremely narrow" exception with no presumption of validity.

Had other states successfully defended similar mandatory retirement ages for police officers?
The opinion surveyed several federal court decisions and found that police agencies in other jurisdictions had generally struggled to justify age-based mandatory retirement as a bona fide occupational qualification, with courts in New York, Minnesota, Michigan, and Missouri rejecting similar defenses for law enforcement personnel.

Background and statutory framework

The opinion analyzed Article 73B, §156(a)(2) (mandatory retirement of certain correctional officers and maximum security attendants at age 62) and Article 88B, §53(a)(3) (mandatory retirement of State Police at age 60) against the federal Age Discrimination in Employment Act, 29 U.S.C. §§621-634, which prohibits age-based employment discrimination against workers 40 to 70 and defines "employer" to include state governments. The opinion traced the ADEA's application to the states from the 1976 decision in National League of Cities v. Usery, which had cast doubt on federal regulation of state employment relations under the Tenth Amendment, through the Supreme Court's 1983 decision in EEOC v. Wyoming, which confirmed the ADEA's validity as applied to state and local governments and required Maryland's mandatory retirement statutes to satisfy the ADEA's narrow bona fide occupational qualification standard.

Citations

Statutes:

• Article 73B, §156(a)(2) of the Maryland Code (mandatory retirement of certain correctional officers and maximum security attendants at age 62)
• Article 88B, §53(a)(3) of the Maryland Code (mandatory retirement of State Police at age 60)
• Article 88B, §53(a)(2) of the Maryland Code (discretionary retirement of State Police at age 50)
• Article 49B, §16(a)(1) of the Maryland Code (general Maryland ban on age discrimination in employment)
• Article 73B, §11(1)(b) of the Maryland Code (procedure for State employees to seek continued employment past age 70)
• Age Discrimination in Employment Act, 29 U.S.C. §§621-634 (federal age discrimination law)
• 29 U.S.C. §621(b) (ADEA purposes)
• 29 U.S.C. §623(a) (prohibited age discrimination practices)
• 29 U.S.C. §630(b) (definition of "employer" including state governments)
• 29 U.S.C. §631(a) (ADEA's protected age range, 40 to 70)
• 29 U.S.C. §623(f)(1) (bona fide occupational qualification defense)

Cases:

• National League of Cities v. Usery, 426 U.S. 833 (1976) (struck down federal wage regulation of states on Tenth Amendment grounds, later overruled)
• Maryland v. Wirtz, 392 U.S. 183, 205 (1968) (quoted on preserving state sovereignty in employment relations)
• Campbell v. Connelie, 542 F.Supp. 275 (N.D. N.Y. 1982) (forced retirement of state troopers at 55 not justified without evidence of necessity)
• EEOC v. Wyoming, 460 U.S. 226 (1983) (ADEA validly applies to state and local governments)
• Home Utilities Company, Inc. v. Revere Copper and Brass, Inc., 209 Md. 610, 619 (1956) (conflicting state statutes are unenforceable)
• Johnson v. Mayor and City Council of Baltimore, 515 F.Supp. 1287, 1294 (D. Md. 1981) (elements of a prima facie ADEA age discrimination claim)
• Arritt v. Grisell, 567 F.2d 1267, 1271 (4th Cir. 1977) (two-part bona fide occupational qualification test)
• Hodgson v. Greyhound Lines, Inc., 499 F.2d 859 (7th Cir. 1974) (medical and performance evidence can support a BFOQ defense)
• EEOC v. City of St. Paul, 500 F.Supp. 1135, 1146 (D.Minn. 1980) (BFOQ defense is an extremely narrow exception)
• Dothard v. Rawlinson, 433 U.S. 321, 333-34 (1977) (cited on the narrowness of occupational qualification defenses)
• Orzel v. City of Wauwatosa Fire Dep't, 697 F.2d 743, 748 (7th Cir. 1983) (generalized safety concerns without medical evidence are insufficient)
• EEOC v. City of Minneapolis, 537 F.Supp. 750, 757-58 (D. Minn. 1982) (forced retirement of a police captain at 65 not justified; no presumption of validity for mandatory retirement statutes)
• EEOC v. City of Ecorse, 29 F.E.P Cases 369 (E.D. Mich. 1981) (injunction against forced retirement of a deputy police chief at 60)
• EEOC v. Missouri State Highway Patrol, 555 F.Supp. 97 (W.D. Mo. 1982) (age ceiling of 60 for patrol officers not a bona fide occupational qualification)
• Beck v. Borough of Manheim, 505 F.Supp. 923 (E.D. Pa. 1981) (cited as a contrary result)
• Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) (later overruled National League of Cities v. Usery, per editor's note)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1984/Volume69_1984.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

EMPLOYMENT

Age Discrimination-Mandatory Retirement-Federal Age Discrimination In Employment Act-State Police-Correctional Officers-State Law Mandating Retirement At Ages 60 And 62 For State Police And Correctional Officers May Not Be Enforced.

February 15, 1984

Mr. Lawrence J. Bach, Acting Secretary
Board of Trustees for Maryland State Retirement and Pension Systems

On behalf of the Board of Trustees for Maryland State Retirement and Pension Systems (the "Board"), you have asked whether certain mandatory retirement provisions of State law are legal and enforceable. The particular statutes in issue are: (1) Article 73B, §156(a)(2), applicable to certain maximum security attendants at Clifton T. Perkins Hospital Center and certain State correctional officers; and (2) Article 88B, §53(a)(3), applicable to Maryland State Police employees. Specifically, you ask whether these mandatory retirement provisions conflict with the federal Age Discrimination in Employment Act.

For the reasons given below, it is our opinion that Article 73B, §156(a)(2) and Article 88B, §53(a)(3) do conflict with the Age Discrimination in Employment Act and, therefore, should not be enforced.

I
Background

The Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§621 through 634, is designed both to promote the employment of older persons, based on ability rather than age, and to prohibit arbitrary age discrimination in employment. 29 U.S.C §621(b). The ADEA provides, in relevant part:

"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; [or]

(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[.]" 29 U.S.C. §623(a).

"Employer" is defined to include a state or local government, as well as any agency or instrumentality of that government. 29 U.S.C. §630(b). The scope of the ADEA is limited to individuals who are at least 40 years old but less than 70. 29 U.S.C. §631(a).

In general, Maryland law also prohibits employment discrimination on the basis of age.1 And most State employes are free to work until at least the age of 70.2

However, two groups of State employees remain subject to mandatory retirement even before the reach age 70: Article 88B, §53(a)(3) requires members of the State Police who attain the age of 60 to retire "on the first day of the next calendar month after attaining that age".3 Article 73B, §156(a)(2) requires mandatory retirement of certain correctional officers and maximum security attendants at the age of 62, subject to year-to-year extensions with the approval of the Commissioner of Corrections, the Director of the Patuxent Institute, or the Secretary of Health and Mental Hygiene, depending on the institution involved.

The issue thus is whether the State may legally enforce these mandatory retirement provisions in light of the Age Discrimination in Employment Act.

II
The Federal Age Discrimination in Employment Act

A. Application to States

Although enacted in 1967, the ADEA did not apply to state and local governments until 1974, when Congress amended the law to include these entities within the definition of "employer". See Pub. L. 93-259, [1974] U.S. Code Cong, and Adm. News 2811. Two years later, however, in 1976, the constitutional validity of the ADEA's application to state and local governments was cast into doubt.

In National League of Cities v. Usery, 426 U.S. 833 (1976), the Supreme Court struck down, on Tenth Amendment grounds, Congress's attempt to extend the wage and hour provisions of the Fair Labor Standards Act to state and local governments. The decision was based on a concern that imposition of certain federal regulations on state governments might allow the federal government to "'devour the essentials of state sovereignty'", i.e., the state's freedom to structure employer/employee relations in areas of traditional state governmental activity, such as police protection, public health, and wage and hour concerns. National League of Cities, 426 U.S. at 855 (quoting Maryland v. Wirtz, 392 U.S. 183, 205 (1968) (Douglas, J., dissenting)).

Following this decision, several state and local governments made similar attacks on those provisions of the ADEA that extended coverage to their operations. In some instances, these attacks were successful. See, e.g., Campbell v. Connelie, 542 F.Supp. 275 (N.D. N.Y. 1982); Taylor v. Montana Department of Fish and Game, 523 F.Supp. 514 (D.Mont. 1981); EEOC v. Wyoming, 514 F.Supp. 595 (D.Wyo. 1981). In those cases, the courts held that the application of the ADEA to state and local workers was unconstitutional. Other courts, however, reached the opposite conclusion. See, e.g., EEOC v. County of Calumet, 686 F.2d 1249 (7th Cir. 1982); EEOC v. County of Los Angeles, 531 F.Supp. 122 (C.D. Cal. 1982); Johnson v. Mayor and City Council of Baltimore, 515 F.Supp. 1287 (D.Md. 1981).

On March 2, 1983, the Supreme Court's decision in EEOC v. Wyoming, 460 U.S. 226 (1983), ended the dispute. The Wyoming case involved a state statute that conditioned the continued employment of Fish and Game Wardens over 55 years old on the year-to-year approval of their employer. The Court held that the extension of the ADEA to state and local governments was a valid exercise of congressional authority under the Commerce Clause and did not violate the Tenth Amendment.

In so doing, the Court painstakingly distinguished its holding in National League of Cities.4 It found the degree of federal intrusion under the ADEA into state retirement policies, as well as the ADEA's impact on state finances, to be minimal. EEOC v. Wyoming, 460 U.S. at 240-42. According to the Court, Wyoming's involuntary retirement statute did not clearly involve the state's ability to use employment relations as "a tool for pursuing social and economic policies beyond their immediate managerial goals". 460 U.S. at 242.

As a result of this decision, upholding the applicability of the ADEA to the states, it is clear that Maryland's mandatory retirement provisions must be tested against the standards set out in the ADEA. And, if Maryland's statutes conflict with the federal law, the State statutes will be unenforceable. See Home Utitlities Company, Inc. v. Revere Copper and Brass, Inc., 209 Md. 610, 619 (1956).

B. The ADEA Standards

An individual facing mandatory retirement establishes a prima facie case of age discrimination under the ADEA by proving that he or she (i) is a member of the protected age group, (ii) has been terminated, (iii) has been replaced by a person outside the protected group, and (iv) was qualified to do the job. Johnson v. Mayor and City Council of Baltimore, 515 F.Supp. 1287, 1294 (D. Md. 1981).

Once the individual establishes a prima facie case, the burden shifts to the employer to establish a "bona fide occupational qualification" defense. Johnson, 515 F.Supp. at 1295. See Arritt v. Grisell, 567 F.2d 1267, 1271 (4th Cir. 1977). The "bona fide occupational qualification" defense ("BFOQ" defense) is set out at 29 U.S.C. §623(f)(1):

"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[.]"

If the employer can demonstrate that age is a "bona fide occupational qualification" for a specific job, then the employer can continue a policy of mandatory retirement based solely on age factors. See EEOC v. Wyoming, 460 U.S. at 240. Similarly, if the employer can demonstrate that the age differentiation reflects other factors, such as the result of cardiac stress testing, annual performance evaluations or physical examinations, stringent physical standards, and so on, a policy of mandatory retirement may be appropriate. See Hodgson v. Greyhound Lines, Inc., 499 F.2d 859 (7th Cir. 1974).

In essence, a BFOQ defense requires a two-fold showing. The employer must first prove that the particular qualification invoked is "reasonably necessary to the essence of [the] business", and, second, that "the employer has reasonable cause, i.e., a factual basis for believing that all or substantially all persons within the class . .. would be unable to perform safely and efficiently the duties of the job involved, or that it is impossible or impractical to deal with persons over the age limit on an individualized basis". Arritt, 567 F.2d at 1271.

This evidentiary burden is a substantial one, as the BFOQ defense is generally said to be an "extremely narrow" exception to ADEA enforcement. See Johnson, 515 F.Supp. at 1295; EEOC v. City of St. Paul, 500 F.Supp. 1135, 1146 (D.Minn. 1980). See also Dothard v. Rawlinson, 433 U.S. 321, 333-34 (1977); Orzel v. City of Wauwatosa Fire Dep't, 697 F.2d 743, 748 (7th Cir. 1983).

A generalized concern for the public safety, based on a subjective belief that the aging process takes its toll particularly quickly on the physical or mental skills of public safety employees, without supporting medical evidence, is not sufficient to establish the BFOQ defense. Orzel, 697 F.2d at 755. Even specific medical evidence demonstrating the debilitating effects of age on the general population is not sufficient to establish this defense. See EEOC v. City of Minneapolis, 537 F.Supp. 750, 757-58 (D. Minn. 1982). Rather, medical evidence must establish either that the class as a whole is unable to perform the particular public safety duties or that it is impossible or impractical to determine, on an individualized basis, whether persons over the age limit can properly perform their public safety functions. See Hodgson v. Greyhound Lines, Inc. 449 F.2d at 862-64.

III
The Maryland Statutes

The class established by Article 88B, §53(a)(3) for mandatory retirement consists of Maryland State Police employees who are 60 years old or older. For the State Police age maximum to be valid as a BFOQ, it is necessary to show either:

(1) that retirement at age 60 is essential to maintaining an effective police force; or

(2) that there is a factual basis for believing that all, or substantially all, police employees of the Maryland State Police at age 60 are unable to perform their duties safely and efficiently, or that such employees cannot practically be evaluated on an individualized basis.

For Article 73B, §156(a)(2) to be valid, a similar showing must be made with respect to correctional officers and maximum security attendants who reach the age of 62.

Police agencies in general have found mandatory retirement based on age difficult to justify as a bona fide occupational qualification. For example, in Campbell v. Connelie, 542 F.Supp. 275 (N.D. N.Y. 1982), a federal district court stated that the forced retirement of New York State Troopers at age 55 was not justified as a BFOQ, absent evidence to show:

(i) that younger Troopers are "reasonably necessary to the functioning of a proficient state police force", or

(ii) that "substantially all persons over the age of 55 are unable to perform safely and efficiently the duties of the job or that it is impractical or impossible to deal with the physical and mental qualifications of persons over the age of 55 on an individualized basis". Campbell, 542 F.Supp. at 279.5

In EEOC v. City of Minneapolis, 537 F.Supp. 750 (D.Minn. 1982), the court held that forced retirement at age 65 for a police captain was not justified by the BFOQ exception. And, in EEOC v. City of Ecorse, 29 F.E.P Cases 369 (E.D. Mich. 1981), the court granted a preliminary injunction to enjoin the city from retiring a deputy police chief pursuant to a city charter requirement that officers retire at age 60. Finally, in a case involving the Missouri Highway Patrol, EEOC v. Missouri State Highway Patrol, 555 F.Supp. 97 (W.D. Mo. 1982), the Missouri District Court held that an age ceiling of 60 for patrol officers was not a bona fide occupational qualification. But see Beck v. Borough of Manheim, 505 F.Supp. 923 (E.D. Pa. 1981).

In sum, the case law indicates that, under the ADEA, mandatory retirement is not illegal per se. However, if an employee successfully demonstrates that he or she was terminated solely because of age, the employer then must sustain the burden of establishing that "age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business", 29 U.S.C. §623(f)(1), an extremely narrow exception. No presumption of validity is accorded mandatory retirement statutes. See EEOC v. City of Minneapolis, 537 F.Supp. at 758. And, if challenged, the state has the burden of proof of establishing the BFOQ defense.

IV
Conclusion

Based on the information now available to us, we question whether a "bona fide occupational qualification" defense could be established for the age maximums applicable to Maryland State Police, correctional officers, and maximum security attendants.

In our opinion, then, absent clear evidence supporting such a defense, Maryland's mandatory retirement laws, Article 73B, §156(a)(2) and Article 88B, §53(a)(3), are in direct conflict with the federal Age Discrimination in Employment Act and, consequently, may not be enforced.

Stephen H. Sachs, Attorney General

James J. Doyle, III
Assistant Attorney General

Nancy Knisley,
Assistant Attorney General

Avery Aisenstark
Chief Counsel,
Opinions and Advice

Editor's Note: National League of Cities v. Usery, discussed in Part II of the Opinion, has been overruled. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).

1 According to Article 49B, §16(a)(1), it is "an unlawful employment practice" for an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, age, national origin, marital status, or physical or mental handicap unrelated in nature and extent so as to reasonably preclude the performance of the employment".

2 See Article 73B, §11(1)(b), providing a procedure by which State employees otherwise subject to mandatory retirement at 70 may seek continued employment beyond that age.

3 In addition, Article 88B, §53(a)(2) authorizes the State Police Superintendent, subject to Board approval, to order a member of the State Police "who has attained the age of 50 to retire on the first day of the next calendar month after which the member is notified of the Superintendent's order".

4 Indeed, one of the concurring justices recommended that the National League of Cities decision be rejected in its entirety. EEOC v. Wyoming, 460 U.S. at 250 (Stevens, J., concurring).

5 The court in Campbell nevertheless upheld the mandatory age retirement on the basis that the 1974 ADEA amendment, extending coverage to state and local governments, was unconstitutional. As discussed in Part II A above, however, that holding has since been superseded by the Supreme Court's subsequent decision in EEOC v. Wyoming.