Minnesota law protects individuals who have attained the age of majority (18) from discrimination in the workplace based on age. Federal law, the Age Discrimination in Employment Act (“ADEA”), protects persons age 40 or older from age discrimination by employers with 20 or more employees. An employer who is not covered by ADEA may require an employee who has attained age 70 to retire. If such an employer adopts a policy of mandatorily retiring employees at age 70, the employer must post a notice to that effect which has been approved by the Minnesota Commissioner of Labor. If an employer intends to terminate an employee who is 65 years or older but not yet age 70 on the ground that the employee can no longer meet the requirements of the job, the employer must give the employee 30 days’ advance notice of intention to terminate the employee’s employment. (See footnote 246)
Federal ADEA Employment Law
Please note that mandatory retirement at age 70, even though permitted under Minnesota law, is a violation of the federal ADEA, which applies to any employer who has 20 or more employees during each working day in each of 20 or more calendar weeks in the current or preceding calendar year. (See footnote 247) Part-time and temporary employees count in determining whether the employer meets the 20 employee threshold.
The ADEA protects any individual age 40 or over from adverse employment action based on age. Therefore, for employers with 20 or more employees, an employee age 40 or older can never be terminated because of age so long as that person is able to perform the job. Termination of an employee over 40, therefore, must occur for performance or another nondiscriminatory reason such as a reduction in force. Note that individuals over age 40 may bring age discrimination claims under the ADEA even if they are replaced by people younger than them who are also over age 40. (See footnote 248)
Reverse Age Discrimination in Minnesota
Although age discrimination is generally thought of in terms of older workers, Minnesota employers must be mindful that they may not discriminate against younger persons on the basis of age. For example, an employer should not refuse to hire a 19 year old for a position merely because the individual is perceived as “too young.” The employer may, however, refuse to hire a 19 year old because that person does not possess the necessary skills to perform the job.
Both federal and Minnesota law provide exceptions to the prohibition on adverse employment action due to age. For example:
- In rare cases (e.g., in some situations, pilots, police officers or fire fighters), age may be a bona fide occupational qualification and, therefore, termination based on age may be permissible.
- When executives or high policy making individuals between ages 65 and 70 are terminated and provided with an annual retirement benefit of $27,000 (Minnesota law) or $44,000 (ADEA) for life, the termination may be permissible. The rules relating to this exception are complex.
- Other exceptions involve providing lower employee benefits to older employees based purely on cost, i.e., the cost of the benefit for the older employee is roughly the same as the cost for the younger employee but the older employee is entitled to a lesser benefit because of his or her age and life expectancy.
The use of any exceptions to either Minnesota or ADEA age discrimination prohibitions should be carefully planned with legal counsel.
When terminating an older employee, the employer should not mention the advisability or attractiveness of retirement, the need for “new blood” or the like in any discussions with the employee or with others. Although some courts have disregarded isolated stray remarks about an employee’s age, such remarks may infer an intent to discriminate, especially if made by a member of management or in the context of some adverse employment action against an older worker. The employer should never tell the employee that he or she is being forced or “asked” to retire, except under one of the very limited exceptions discussed above. Any such remarks could be used as evidence of age discrimination. The age factor should be eliminated in all discussions which relate to an individual’s employment unless the individual raises the subject, e.g., by asking questions relating to retirement benefits.
246. Minn. Stat. § 181.81, subd. 1 (2007).
247. 29 U.S.C. § 630(b) (2007).
248. O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996).