Request By:
Mr. David L. Keller
Executive Director
Kentucky School Boards Association
Englewood Office Park
Route #3, Box 96A
Frankfort, Kentucky 40601Mr. Philip Taliaferro
Chairman
Kentucky Personnel BoardMr. Thomas C. Greenwell
Commissioner
Department of Personnel
Room 372, Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Kevin M. Noland, General Counsel
On behalf of the Kentucky School Boards Association, the Kentucky Personnel Board and the Department of Personnel, you have submitted requests to our office for a formal opinion as to the effect of the recently enacted H.R. 4154, (Public Law 99-592), which amends the 1967 Federal Age Discrimination in Employment Act, on local school board employees and state government employees.
The ADEA was enacted to prohibit discrimination in employment on account of age in such matters as hiring, job retention, compensation, and other terms, conditions, and privileges of employment. The Act is intended to insure that older individuals who desire to work will not be denied employment opportunities solely on the basis of age.
The amendments to the federal Age Discrimination in Employment Act (ADEA) took effect on January 1, 1987. The amendments include the removal of the age 70 cap which permitted mandatory retirement at that age. The question now presented is whether in light of the recent amendments to ADEA, a local board of education or the state government may still mandate retirement at age 70 or reduce employment rights, e.g., tenure or merit status, once the employee reaches age 70.
First, we point out that the ADEA, as amended, allows exemptions from the prohibition against mandatory retirement on the basis of age only in the limited cases of law enforcement officers and firefighters "or where age is a bona fide occupational qualification reasonably necessary to the particular business." 29 U.S.C. § 623(f)(1). Also exempted from the prohibition against mandatory retirement are those employees serving under a contract of unlimited tenure at an institution of higher education. 29 U.S.C. § 631.
Previously, the ADEA permitted employers to impose compulsory retirement upon an employee who reaches the age of 70, pursuant to the ADEA amendments of 1978. When the 1978 amendments to the ADEA were enacted, our office opined that the age 65 limitation on teacher tenure set out in KRS 161.720(4) should be read as age 70. See OAG 79-204. Now that the age 70 cap has been removed by the 1986 amendments to the ADEA, OAG 79-204 is no longer factually applicable. 29 U.S.C. § 631(a) now reads: "The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age." Thus, the ADEA as amended in 1986 has been changed so that the Act is now applicable to anyone at least age 40.
As we said in OAG 79-204, the ADEA is applicable to school districts as employers. Additionally, the definition of "employer" within the ADEA leaves no doubt that it is also applicable to the state government as an employer. 29 U.S.C. § 630(b).
Given the 1986 amendments to the ADEA, there is a conflict between those amendments and KRS 161.720(4), which includes an age 65 limitation on teacher tenure. Furthermore, there is a conflict between the 1986 amendments to the ADEA and certain statutes and regulations applicable to state government employees. For example, KRS 18A.095 and KRS 18A. 140 provide employees. For example, KRS 18A. 095 and KRS 18A. 140 provide for certain class protection between ages 40 and 70 for state government employees. The Kentucky Personnel Board's regulations at 101 KAR 1:350 and 101 KAR 1:370 also make reference to age 70. The Kentucky Department of Personnel's regulation 101 KAR 2:090, Section 7, provides for mandatory retirement from state service at age 70 with a year-to-year waiver. In Section 6 of that same regulation, there is a maximum hiring age of 70. With this present conflict between the state and federal law, the issue becomes which law shall prevail.
Under the Supremacy Clause of the United State Constitution, state law which is inconsistent with a federal statutory scheme must yield. U.S.C.A., Const., Art. 6, cl. 2. See also,
Straight Creek v. Saylor, Ky., 185 S.W.2d 253 (1945). Therefore, pursuant to the Supremacy Clause, the 1986 amendments to the ADEA preempt those state law upper age limits which are inconsistent with the provisions of the ADEA as it presently reads.
The legal analysis applicable to the issues you have presented is the same as that applied in OAG 79-204, which has been previously cited herein. That Opinion involved a review of the 1978 amendments to the ADEA and their effect on state law relating to teacher tenure. In that Opinion we stated:
"The nub of the problem is whether the legislated continuing status of KRS 161.720(4) which automatically ends upon a teacher reaching age sixty-five can stand when viewed against the ADEA amendments of 1978. It is our opinion that it cannot in that KRS 161.720(4) is inconsistent with the provisions of the federal age discrimination law. Thus, we conclude that a certified employe in Kentucky who attains a continuing service contract (tenure) may, under federal law, hold that tenure status until the teacher resigns or retires or reaches the age of seventy or until the contract is lawfully terminated or suspended.
"The basis for this part of our opinion rests on the provision of Section 623(a)(2), 29 U.S.C., supra. An employer may not 'limit, segregate, or classify his employes in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employe, because of such individual's age.' The end result of KRS 161.720(4) serves at the least to classify teachers in a school system solely upon the happening of reaching age sixty-five which assuredly 'adversely affects his (the teacher's) status as an employe.' Our school law even uses the term 'continuing status' as compared with the status held for a year at a time under a limited contract. See KRS 161.720(5). We believe the federal law as amended gives protection from such a situation to school district certified employes who are in the age range of 40-70 years."
While we affirm the reasoning in OAG 79-204, in light of the 1986 amendments to the ADEA, we must update the conclusions reached in that opinion. We now conclude that a certified school employee in Kentucky who attains a continuing service contract (tenure) may, under federal law, hold that tenure status until the teacher resigns or retires or until the contract is lawfully terminated or suspended. In other words, the 1986 amendments to the ADEA provide federal law protection to a school district's tenured employees who are at least 40 years of age, and there is no longer an upper age limit on the protected age.
The legal analysis above relative to school district employees is equally applicable to state government employees. Therefore, the 1986 amendments to the ADEA preempt and make invalid the upper age restrictions found in KRS 18A.095, KRS 18A.140, 101 KAR 1:350, 101 KAR 1:370, and 101 KAR 2:090, Sections 6 and 7. This means that the provisions within these statutes and regulations which reduce classified service or merit status protections based upon an upper age limit and which mandate retirement from state service at age 70 with a year-to-year waiver are invalid as preempted by the 1986 amendments to the ADEA.
At this point, we want to mention a couple of additional points regarding certified employees of a school district, classified or merit employees of the state government, and the ADEA. Section 623(f)(3) of the ADEA provides that it is not unlawful for an employer to discharge or otherwise discipline an individual for good cause even though he or she is within the protected age range. The local board of education, as well as state government, may terminate an employee even though the employee is age 40 or over, based upon the individual assessment of the employee's ability, capabilities, etc.
Finally, the application of the ADEA as amended in 1986 to classified employees of local boards of education and to nonclassified or nonmerit employees of the state government must be considered. As a general proposition, a local board of education and the state government may not have a policy of refusing to consider for employment or re-employment individuals holding nontenured or nonmerit positions who are age 40 or over. School board classified employees are hired on one year contracts or on an hourly basis, and a board of education may not discriminate or otherwise have any employment practice affecting employees in the protected age range (which is age 40 and over) which is prompted or motivated by or the result of age. The same conclusion applies as to nonmerit or unclassified state government employees.
However, we do believe there exists support for the continuation of a policy of the state board of education that drivers of school buses in a local school district must be between 18 and 69 years of age. See 702 KAR 5:080, Section 6. Our conclusion on this matter rests with the language in 29 U.S.C. Section 623(f)(1), which permits an employer to differentiate as to age without violating the law if age is shown to be a "bona fide occupational qualification. " Such a bona fide occupational qualification factor was found to exist for intercity commercial bus drivers based in part on the issue of public safety. See
Hodgson v. Greyhound Lines, Inc., 499 F.2d 859 (7th Cir. 1974). We believe an even more compelling concern for safety argument is available in regard to the drivers of our public common school buses. The State Board of Education, as it was requested to do so in OAG 79-204, should again give consideration to whether there does exist a rational basis for the age qualification as a bona fide occupational qualification in its present policy for school bus drivers. Like-wise, the Kentucky Personnel Board and the Kentucky Department of Personnel should review the job classifications within state government to determine which positions may be considered to have bona fide occupational qualifications which make an upper age limit for those particular positions reasonably necessary.
As an aside, it is pointed out that also preempted in part by the ADEA is KRS 344.040(1), which makes it an unlawful practice for an employer:
"To fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against an individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's . . . age between forty (40) and seventy (70); . . ."
The ADEA preempts and makes invalid the upper age restriction in KRS 344.040(1), as quoted above.
However, one caveat should be noted. The definition of employer in the ADEA indicates in relevant part that "employer" means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. See 29 U.S.C. § 630(b). In contrast, the definition of employer that is applicable to KRS 344.040 states that "employer" means ". . . a person who has eight or more employees within the state in each of 20 or more calendar weeks in the current or preceding calendar year and an agent of such a person." KRS 344.030(1). Therefore, the ADEA does not preempt the upper age restriction in KRS 344.040 insofar as it applies to employers with at least eight but less than twenty employees.
CONCLUSION
The federal Age Discrimination in Employment Act, (ADEA) as amended effective January 1, 1987, preempts and makes invalid the upper age restrictions found in KRS 161.720(4), 18A.095, 18A.140, 101 KAR 1:350, 101 KAR 1:370, and 101 KAR 2:090, Sections 6 and 7. This means that school boards and the state government may not discriminate or otherwise have any employment practice affecting employees in the protected age range (which is age 40 and over) that is motivated by or the result of age. Additionally, under the 1986 Amendments to the ADEA, tenured school employees and classified or merit status state employees in the protected age range may hold that tenure status or merit status until they resign, retire, or until their contracts are lawfully terminated or suspended. Finally, a narrow exemption from the prohibition against mandatory retirement on the basis of age only is provided by the ADEA, as amended, in the limited cases of law enforcement officers, firefighters, those serving under a contract of unlimited tenure at an institution of higher education, "or where age is a bona fide occupational qualification reasonably necessary to the particular business."
To the extent that OAG 79-204 is inconsistent with this opinion, it is hereby withdrawn.