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.
(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) It shall not be a violation of subsection (a), (b), (c), or
(e) of this section solely because -
(A) 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
(B) 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.
(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.