29 U.S.C. § 623 : US Code - Section 623: Prohibition of age discrimination

Search 29 U.S.C. § 623 : US Code - Section 623: Prohibition of age discrimination

    (a) Employer practices
      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.
    (b) Employment agency practices
      It shall be unlawful for an employment agency to fail or refuse
    to refer for employment, or otherwise to discriminate against, any
    individual because of such individual's age, or to classify or
    refer for employment any individual on the basis of such
    individual's age.
    (c) Labor organization practices
      It shall be unlawful for a labor organization - 
        (1) to exclude or to expel from its membership, or otherwise to
      discriminate against, any individual because of his age;
        (2) to limit, segregate, or classify its membership, or to
      classify or fail or refuse to refer for employment any
      individual, in any way which would deprive or tend to deprive any
      individual of employment opportunities, or would limit such
      employment opportunities or otherwise adversely affect his status
      as an employee or as an applicant for employment, because of such
      individual's age;
        (3) to cause or attempt to cause an employer to discriminate
      against an individual in violation of this section.
    (d) Opposition to unlawful practices; participation in
      investigations, proceedings, or litigation
      It shall be unlawful for an employer to discriminate against any
    of his employees or applicants for employment, for an employment
    agency to discriminate against any individual, or for a labor
    organization to discriminate against any member thereof or
    applicant for membership, because such individual, member or
    applicant for membership has opposed any practice made unlawful by
    this section, or because such individual, member or applicant for
    membership has made a charge, testified, assisted, or participated
    in any manner in an investigation, proceeding, or litigation under
    this chapter.
    (e) Printing or publication of notice or advertisement indicating
      preference, limitation, etc.
      It shall be unlawful for an employer, labor organization, or
    employment agency to print or publish, or cause to be printed or
    published, any notice or advertisement relating to employment by
    such an employer or membership in or any classification or referral
    for employment by such a labor organization, or relating to any
    classification or referral for employment by such an employment
    agency, indicating any preference, limitation, specification, or
    discrimination, based on age.
    (f) Lawful practices; age an occupational qualification; other
      reasonable factors; laws of foreign workplace; seniority system;
      employee benefit plans; discharge or discipline for good cause
      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, or
      where such practices involve an employee in a workplace in a
      foreign country, and compliance with such subsections would cause
      such employer, or a corporation controlled by such employer, to
      violate the laws of the country in which such workplace is
      located;
        (2) to take any action otherwise prohibited under subsection
      (a), (b), (c), or (e) of this section - 
          (A) to observe the terms of a bona fide seniority system that
        is not intended to evade the purposes of this chapter, except
        that no such seniority system shall require or permit the
        involuntary retirement of any individual specified by section
        631(a) of this title because of the age of such individual; or
          (B) to observe the terms of a bona fide employee benefit plan
        - 
            (i) where, for each benefit or benefit package, the actual
          amount of payment made or cost incurred on behalf of an older
          worker is no less than that made or incurred on behalf of a
          younger worker, as permissible under section 1625.10, title
          29, Code of Federal Regulations (as in effect on June 22,
          1989); or
            (ii) that is a voluntary early retirement incentive plan
          consistent with the relevant purpose or purposes of this
          chapter.

      Notwithstanding clause (i) or (ii) of subparagraph (B), no such
      employee benefit plan or voluntary early retirement incentive
      plan shall excuse the failure to hire any individual, and no such
      employee benefit plan shall require or permit the involuntary
      retirement of any individual specified by section 631(a) of this
      title, because of the age of such individual. An employer,
      employment agency, or labor organization acting under
      subparagraph (A), or under clause (i) or (ii) of subparagraph
      (B), shall have the burden of proving that such actions are
      lawful in any civil enforcement proceeding brought under this
      chapter; or
        (3) to discharge or otherwise discipline an individual for good
      cause.
    (g) Repealed. Pub. L. 101-239, title VI, Sec. 6202(b)(3)(C)(i),
      Dec. 19, 1989, 103 Stat. 2233
    (h) Practices of foreign corporations controlled by American
      employers; foreign employers not controlled by American
      employers; factors determining control
      (1) If an employer controls a corporation whose place of
    incorporation is in a foreign country, any practice by such
    corporation prohibited under this section shall be presumed to be
    such practice by such employer.
      (2) The prohibitions of this section shall not apply where the
    employer is a foreign person not controlled by an American
    employer.
      (3) For the purpose of this subsection the determination of
    whether an employer controls a corporation shall be based upon the -
     
        (A) interrelation of operations,
        (B) common management,
        (C) centralized control of labor relations, and
        (D) common ownership or financial control,

    of the employer and the corporation.
    (i) Employee pension benefit plans; cessation or reduction of
      benefit accrual or of allocation to employee account;
      distribution of benefits after attainment of normal retirement
      age; compliance; highly compensated employees
      (1) Except as otherwise provided in this subsection, it shall be
    unlawful for an employer, an employment agency, a labor
    organization, or any combination thereof to establish or maintain
    an employee pension benefit plan which requires or permits - 
        (A) in the case of a defined benefit plan, the cessation of an
      employee's benefit accrual, or the reduction of the rate of an
      employee's benefit accrual, because of age, or
        (B) in the case of a defined contribution plan, the cessation
      of allocations to an employee's account, or the reduction of the
      rate at which amounts are allocated to an employee's account,
      because of age.

      (2) Nothing in this section shall be construed to prohibit an
    employer, employment agency, or labor organization from observing
    any provision of an employee pension benefit plan to the extent
    that such provision imposes (without regard to age) a limitation on
    the amount of benefits that the plan provides or a limitation on
    the number of years of service or years of participation which are
    taken into account for purposes of determining benefit accrual
    under the plan.
      (3) In the case of any employee who, as of the end of any plan
    year under a defined benefit plan, has attained normal retirement
    age under such plan - 
        (A) if distribution of benefits under such plan with respect to
      such employee has commenced as of the end of such plan year, then
      any requirement of this subsection for continued accrual of
      benefits under such plan with respect to such employee during
      such plan year shall be treated as satisfied to the extent of the
      actuarial equivalent of in-service distribution of benefits, and
        (B) if distribution of benefits under such plan with respect to
      such employee has not commenced as of the end of such year in
      accordance with section 1056(a)(3) of this title and section
      401(a)(14)(C) of title 26, and the payment of benefits under such
      plan with respect to such employee is not suspended during such
      plan year pursuant to section 1053(a)(3)(B) of this title or
      section 411(a)(3)(B) of title 26, then any requirement of this
      subsection for continued accrual of benefits under such plan with
      respect to such employee during such plan year shall be treated
      as satisfied to the extent of any adjustment in the benefit
      payable under the plan during such plan year attributable to the
      delay in the distribution of benefits after the attainment of
      normal retirement age.

    The provisions of this paragraph shall apply in accordance with
    regulations of the Secretary of the Treasury. Such regulations
    shall provide for the application of the preceding provisions of
    this paragraph to all employee pension benefit plans subject to
    this subsection and may provide for the application of such
    provisions, in the case of any such employee, with respect to any
    period of time within a plan year.
      (4) Compliance with the requirements of this subsection with
    respect to an employee pension benefit plan shall constitute
    compliance with the requirements of this section relating to
    benefit accrual under such plan.
      (5) Paragraph (1) shall not apply with respect to any employee
    who is a highly compensated employee (within the meaning of section
    414(q) of title 26) to the extent provided in regulations
    prescribed by the Secretary of the Treasury for purposes of
    precluding discrimination in favor of highly compensated employees
    within the meaning of subchapter D of chapter 1 of title 26.
      (6) A plan shall not be treated as failing to meet the
    requirements of paragraph (1) solely because the subsidized portion
    of any early retirement benefit is disregarded in determining
    benefit accruals or it is a plan permitted by subsection (m) of
    this section..(!1)

      (7) Any regulations prescribed by the Secretary of the Treasury
    pursuant to clause (v) of section 411(b)(1)(H) of title 26 and
    subparagraphs (C) and (D) (!2) of section 411(b)(2) of title 26
    shall apply with respect to the requirements of this subsection in
    the same manner and to the same extent as such regulations apply
    with respect to the requirements of such sections 411(b)(1)(H) and
    411(b)(2).

      (8) A plan shall not be treated as failing to meet the
    requirements of this section solely because such plan provides a
    normal retirement age described in section 1002(24)(B) of this
    title and section 411(a)(8)(B) of title 26.
      (9) For purposes of this subsection - 
        (A) The terms "employee pension benefit plan", "defined benefit
      plan", "defined contribution plan", and "normal retirement age"
      have the meanings provided such terms in section 1002 of this
      title.
        (B) The term "compensation" has the meaning provided by section
      414(s) of title 26.

      (10) Special rules relating to age. - 
        (A) Comparison to similarly situated younger individual. - 
          (i) In general. - A plan shall not be treated as failing to
        meet the requirements of paragraph (1) if a participant's
        accrued benefit, as determined as of any date under the terms
        of the plan, would be equal to or greater than that of any
        similarly situated, younger individual who is or could be a
        participant.
          (ii) Similarly situated. - For purposes of this subparagraph,
        a participant is similarly situated to any other individual if
        such participant is identical to such other individual in every
        respect (including period of service, compensation, position,
        date of hire, work history, and any other respect) except for
        age.
          (iii) Disregard of subsidized early retirement benefits. - In
        determining the accrued benefit as of any date for purposes of
        this clause, the subsidized portion of any early retirement
        benefit or retirement-type subsidy shall be disregarded.
          (iv) Accrued benefit. - For purposes of this subparagraph,
        the accrued benefit may, under the terms of the plan, be
        expressed as an annuity payable at normal retirement age, the
        balance of a hypothetical account, or the current value of the
        accumulated percentage of the employee's final average
        compensation.

        (B) Applicable defined benefit plans. - 
          (i) Interest credits. - 
            (I) In general. - An applicable defined benefit plan shall
          be treated as failing to meet the requirements of paragraph
          (1) unless the terms of the plan provide that any interest
          credit (or an equivalent amount) for any plan year shall be
          at a rate which is not greater than a market rate of return.
          A plan shall not be treated as failing to meet the
          requirements of this subclause merely because the plan
          provides for a reasonable minimum guaranteed rate of return
          or for a rate of return that is equal to the greater of a
          fixed or variable rate of return.
            (II) Preservation of capital. - An interest credit (or an
          equivalent amount) of less than zero shall in no event result
          in the account balance or similar amount being less than the
          aggregate amount of contributions credited to the account.
            (III) Market rate of return. - The Secretary of the
          Treasury may provide by regulation for rules governing the
          calculation of a market rate of return for purposes of
          subclause (I) and for permissible methods of crediting
          interest to the account (including fixed or variable interest
          rates) resulting in effective rates of return meeting the
          requirements of subclause (I). In the case of a governmental
          plan (as defined in the first sentence of section 414(d) of
          title 26), a rate of return or a method of crediting interest
          established pursuant to any provision of Federal, State, or
          local law (including any administrative rule or policy
          adopted in accordance with any such law) shall be treated as
          a market rate of return for purposes of subclause (I) and a
          permissible method of crediting interest for purposes of
          meeting the requirements of subclause (I), except that this
          sentence shall only apply to a rate of return or method of
          crediting interest if such rate or method does not violate
          any other requirement of this chapter.

          (ii) Special rule for plan conversions. - If, after June 29,
        2005, an applicable plan amendment is adopted, the plan shall
        be treated as failing to meet the requirements of paragraph
        (1)(H) unless the requirements of clause (iii) are met with
        respect to each individual who was a participant in the plan
        immediately before the adoption of the amendment.
          (iii) Rate of benefit accrual. - Subject to clause (iv), the
        requirements of this clause are met with respect to any
        participant if the accrued benefit of the participant under the
        terms of the plan as in effect after the amendment is not less
        than the sum of - 
            (I) the participant's accrued benefit for years of service
          before the effective date of the amendment, determined under
          the terms of the plan as in effect before the amendment, plus
            (II) the participant's accrued benefit for years of service
          after the effective date of the amendment, determined under
          the terms of the plan as in effect after the amendment.

          (iv) Special rules for early retirement subsidies. - For
        purposes of clause (iii)(I), the plan shall credit the
        accumulation account or similar amount (!3) with the amount of
        any early retirement benefit or retirement-type subsidy for the
        plan year in which the participant retires if, as of such time,
        the participant has met the age, years of service, and other
        requirements under the plan for entitlement to such benefit or
        subsidy.

          (v) Applicable plan amendment. - For purposes of this
        subparagraph - 
            (I) In general. - The term "applicable plan amendment"
          means an amendment to a defined benefit plan which has the
          effect of converting the plan to an applicable defined
          benefit plan.
            (II) Special rule for coordinated benefits. - If the
          benefits of 2 or more defined benefit plans established or
          maintained by an employer are coordinated in such a manner as
          to have the effect of the adoption of an amendment described
          in subclause (I), the sponsor of the defined benefit plan or
          plans providing for such coordination shall be treated as
          having adopted such a plan amendment as of the date such
          coordination begins.
            (III) Multiple amendments. - The Secretary of the Treasury
          shall issue regulations to prevent the avoidance of the
          purposes of this subparagraph through the use of 2 or more
          plan amendments rather than a single amendment.
            (IV) Applicable defined benefit plan. - For purposes of
          this subparagraph, the term "applicable defined benefit plan"
          has the meaning given such term by section 1053(f)(3) of this
          title.

          (vi) Termination requirements. - An applicable defined
        benefit plan shall not be treated as meeting the requirements
        of clause (i) unless the plan provides that, upon the
        termination of the plan - 
            (I) if the interest credit rate (or an equivalent amount)
          under the plan is a variable rate, the rate of interest used
          to determine accrued benefits under the plan shall be equal
          to the average of the rates of interest used under the plan
          during the 5-year period ending on the termination date, and
            (II) the interest rate and mortality table used to
          determine the amount of any benefit under the plan payable in
          the form of an annuity payable at normal retirement age shall
          be the rate and table specified under the plan for such
          purpose as of the termination date, except that if such
          interest rate is a variable rate, the interest rate shall be
          determined under the rules of subclause (I).

        (C) Certain offsets permitted. - A plan shall not be treated as
      failing to meet the requirements of paragraph (1) solely because
      the plan provides offsets against benefits under the plan to the
      extent such offsets are allowable in applying the requirements of
      section 401(a) of title 26.
        (D) Permitted disparities in plan contributions or benefits. -
      A plan shall not be treated as failing to meet the requirements
      of paragraph (1) solely because the plan provides a disparity in
      contributions or benefits with respect to which the requirements
      of section 401(l) of title 26 are met.
        (E) Indexing permitted. - 
          (i) In general. - A plan shall not be treated as failing to
        meet the requirements of paragraph (1) solely because the plan
        provides for indexing of accrued benefits under the plan.
          (ii) Protection against loss. - Except in the case of any
        benefit provided in the form of a variable annuity, clause (i)
        shall not apply with respect to any indexing which results in
        an accrued benefit less than the accrued benefit determined
        without regard to such indexing.
          (iii) Indexing. - For purposes of this subparagraph, the term
        "indexing" means, in connection with an accrued benefit, the
        periodic adjustment of the accrued benefit by means of the
        application of a recognized investment index or methodology.

        (F) Early retirement benefit or retirement-type subsidy. - For
      purposes of this paragraph, the terms "early retirement benefit"
      and "retirement-type subsidy" have the meaning given such terms
      in section 1054(g)(2)(A) of this title.(!2)
        (G) Benefit accrued to date. - For purposes of this paragraph,
      any reference to the accrued benefit shall be a reference to such
      benefit accrued to date.
    (j) Employment as firefighter or law enforcement officer
      It shall not be unlawful for an employer which is a State, a
    political subdivision of a State, an agency or instrumentality of a
    State or a political subdivision of a State, or an interstate
    agency to fail or refuse to hire or to discharge any individual
    because of such individual's age if such action is taken - 
        (1) with respect to the employment of an individual as a
      firefighter or as a law enforcement officer, the employer has
      complied with section 3(d)(2) of the Age Discrimination in
      Employment Amendments of 1996 (!2) if the individual was
      discharged after the date described in such section, and the
      individual has attained - 
          (A) the age of hiring or retirement, respectively, in effect
        under applicable State or local law on March 3, 1983; or
          (B)(i) if the individual was not hired, the age of hiring in
        effect on the date of such failure or refusal to hire under
        applicable State or local law enacted after September 30, 1996;
        or
          (ii) if applicable State or local law was enacted after
        September 30, 1996, and the individual was discharged, the
        higher of - 
            (I) the age of retirement in effect on the date of such
          discharge under such law; and
            (II) age 55; and

        (2) pursuant to a bona fide hiring or retirement plan that is
      not a subterfuge to evade the purposes of this chapter.
    (k) Seniority system or employee benefit plan; compliance
      A seniority system or employee benefit plan shall comply with
    this chapter regardless of the date of adoption of such system or
    plan.
    (l) Lawful practices; minimum age as condition of eligibility for
      retirement benefits; deductions from severance pay; reduction of
      long-term disability benefits
      Notwithstanding clause (i) or (ii) of subsection (f)(2)(B) of
    this section - 
        (1)(A) It shall not be a violation of subsection (a), (b), (c),
      or (e) of this section solely because - 
          (i) an employee pension benefit plan (as defined in section
        1002(2) of this title) provides for the attainment of a minimum
        age as a condition of eligibility for normal or early
        retirement benefits; or
          (ii) a defined benefit plan (as defined in section 1002(35)
        of this title) provides for - 
            (I) payments that constitute the subsidized portion of an
          early retirement benefit; or
            (II) social security supplements for plan participants that
          commence before the age and terminate at the age (specified
          by the plan) when participants are eligible to receive
          reduced or unreduced old-age insurance benefits under title
          II of the Social Security Act (42 U.S.C. 401 et seq.), and
          that do not exceed such old-age insurance benefits.

        (B) A voluntary early retirement incentive plan that - 
          (i) is maintained by - 
            (I) a local educational agency (as defined in section 7801
          of title 20,(!4) or

            (II) an education association which principally represents
          employees of 1 or more agencies described in subclause (I)
          and which is described in section 501(c)(5) or (6) of title
          26 and exempt from taxation under section 501(a) of title 26,
          and

          (ii) makes payments or supplements described in subclauses
        (I) and (II) of subparagraph (A)(ii) in coordination with a
        defined benefit plan (as so defined) maintained by an eligible
        employer described in section 457(e)(1)(A) of title 26 or by an
        education association described in clause (i)(II),

      shall be treated solely for purposes of subparagraph (A)(ii) as
      if it were a part of the defined benefit plan with respect to
      such payments or supplements. Payments or supplements under such
      a voluntary early retirement incentive plan shall not constitute
      severance pay for purposes of paragraph (2).
        (2)(A) It shall not be a violation of subsection (a), (b), (c),
      or (e) of this section solely because following a contingent
      event unrelated to age - 
          (i) the value of any retiree health benefits received by an
        individual eligible for an immediate pension;
          (ii) the value of any additional pension benefits that are
        made available solely as a result of the contingent event
        unrelated to age and following which the individual is eligible
        for not less than an immediate and unreduced pension; or
          (iii) the values described in both clauses (i) and (ii);

      are deducted from severance pay made available as a result of the
      contingent event unrelated to age.
        (B) For an individual who receives immediate pension benefits
      that are actuarially reduced under subparagraph (A)(i), the
      amount of the deduction available pursuant to subparagraph (A)(i)
      shall be reduced by the same percentage as the reduction in the
      pension benefits.
        (C) For purposes of this paragraph, severance pay shall include
      that portion of supplemental unemployment compensation benefits
      (as described in section 501(c)(17) of title 26) that - 
          (i) constitutes additional benefits of up to 52 weeks;
          (ii) has the primary purpose and effect of continuing
        benefits until an individual becomes eligible for an immediate
        and unreduced pension; and
          (iii) is discontinued once the individual becomes eligible
        for an immediate and unreduced pension.

        (D) For purposes of this paragraph and solely in order to make
      the deduction authorized under this paragraph, the term "retiree
      health benefits" means benefits provided pursuant to a group
      health plan covering retirees, for which (determined as of the
      contingent event unrelated to age) - 
          (i) the package of benefits provided by the employer for the
        retirees who are below age 65 is at least comparable to
        benefits provided under title XVIII of the Social Security Act
        (42 U.S.C. 1395 et seq.);
          (ii) the package of benefits provided by the employer for the
        retirees who are age 65 and above is at least comparable to
        that offered under a plan that provides a benefit package with
        one-fourth the value of benefits provided under title XVIII of
        such Act; or
          (iii) the package of benefits provided by the employer is as
        described in clauses (i) and (ii).

        (E)(i) If the obligation of the employer to provide retiree
      health benefits is of limited duration, the value for each
      individual shall be calculated at a rate of $3,000 per year for
      benefit years before age 65, and $750 per year for benefit years
      beginning at age 65 and above.
        (ii) If the obligation of the employer to provide retiree
      health benefits is of unlimited duration, the value for each
      individual shall be calculated at a rate of $48,000 for
      individuals below age 65, and $24,000 for individuals age 65 and
      above.
        (iii) The values described in clauses (i) and (ii) shall be
      calculated based on the age of the individual as of the date of
      the contingent event unrelated to age. The values are effective
      on October 16, 1990, and shall be adjusted on an annual basis,
      with respect to a contingent event that occurs subsequent to the
      first year after October 16, 1990, based on the medical component
      of the Consumer Price Index for all-urban consumers published by
      the Department of Labor.
        (iv) If an individual is required to pay a premium for retiree
      health benefits, the value calculated pursuant to this
      subparagraph shall be reduced by whatever percentage of the
      overall premium the individual is required to pay.
        (F) If an employer that has implemented a deduction pursuant to
      subparagraph (A) fails to fulfill the obligation described in
      subparagraph (E), any aggrieved individual may bring an action
      for specific performance of the obligation described in
      subparagraph (E). The relief shall be in addition to any other
      remedies provided under Federal or State law.
        (3) It shall not be a violation of subsection (a), (b), (c), or
      (e) of this section solely because an employer provides a bona
      fide employee benefit plan or plans under which long-term
      disability benefits received by an individual are reduced by any
      pension benefits (other than those attributable to employee
      contributions) - 
          (A) paid to the individual that the individual voluntarily
        elects to receive; or
          (B) for which an individual who has attained the later of age
        62 or normal retirement age is eligible.
    (m) Voluntary retirement incentive plans
      Notwithstanding subsection (f)(2)(B) of this section, it shall
    not be a violation of subsection (a), (b), (c), or (e) of this
    section solely because a plan of an institution of higher education
    (as defined in section 1001 of title 20) offers employees who are
    serving under a contract of unlimited tenure (or similar
    arrangement providing for unlimited tenure) supplemental benefits
    upon voluntary retirement that are reduced or eliminated on the
    basis of age, if - 
        (1) such institution does not implement with respect to such
      employees any age-based reduction or cessation of benefits that
      are not such supplemental benefits, except as permitted by other
      provisions of this chapter;
        (2) such supplemental benefits are in addition to any
      retirement or severance benefits which have been offered
      generally to employees serving under a contract of unlimited
      tenure (or similar arrangement providing for unlimited tenure),
      independent of any early retirement or exit-incentive plan,
      within the preceding 365 days; and
        (3) any employee who attains the minimum age and satisfies all
      non-age-based conditions for receiving a benefit under the plan
      has an opportunity lasting not less than 180 days to elect to
      retire and to receive the maximum benefit that could then be
      elected by a younger but otherwise similarly situated employee,
      and the plan does not require retirement to occur sooner than 180
      days after such election.