State Department’s mandatory retirement at age 65 of certain employees policy violates Age Discrimination in Employment Act (ADEA)

State Department’s mandatory retirement at age 65 of certain employees policy violates Age Discrimination in Employment Act (ADEA) 
Miller v Clinton, United States Court of Appeals, District of Columbia Circuit, Docket #10-5405

The United States Department of State terminated the employment of John R. Miller, Jr., a United States citizen working abroad, solely because he turned sixty-five years old.*The Department contended that it was free to terminate employees like Miller on account of their age as a matter of law.**

Noting that “the necessary consequence of the Department’s position is that it is also free from any statutory bar against terminating an employee like Miller solely on account of his disability or race or religion or sex, the Circuit Court of Appeals, Circuit Judge Kavanaugh dissenting. reversed the district court’s dismissal of Miller’s petition. The court said that it found nothing in the Basic Authorities Act, 22 U.S.C. 2669(c)2(c), relied upon by the State Department for its action that abrogated the ADEA’s broad proscription against personnel actions that discriminate on the basis of age.***

Noting that the Supreme Court has recognized that the ADEA’s sweeping mandate “broadly prohibits arbitrary discrimination in the workplace based on age,” citing Lorillard v Pons, 434 U.S. 575, the Circuit Court said that “The Act’s protections for employees of the federal government are, if anything, even more expansive than those for workers employed in the private sector … means, among other things, that federal employees cannot be subjected to mandatory retirement at any age.” In other words, said the court, there is “no permissible [age] cap” for federal employment.

The consequences of the State Department’s argument, said the Circuit Court, cannot be limited to the ADEA alone as were it to accept the Department’s contention that §2669(c) creates an exemption from the ADEA, it would have to reach the same conclusion regarding both Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. §§12101 et seq.3 as it could see no way to distinguish the latter two statutes from the ADEA.

The Circuit Court remanded the case to the district court “for further proceedings.”

* The ADEA [see 29 USC 14, §631(c)(1)] sets out an "age exception" for “bona fideexecutives or high policymakers” wherein it provides that “Nothing in this chapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $44,000” [§29 U.S.C. 14, §631(c)(1)]. 

** The State Department contended that the statute under which Miller was hired, §2(c) of the Basic Authorities Act, 22 U.S.C. §2669(c), permitted the Department to exempt Miller from the protections of the ADEA

*** The court explained that “Congress would not have used ambiguous language had it intended to override the ADEA is confirmed by considering the language that Congress did use when it intended to carve out exceptions from that statute … when Congress had such an intention, it made that intention clear.”

The decision is posted on the Internet at:$file/10-5405-1387823.pdf