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NOTES:
Source
(, § 4, Dec. 15, 1967, ; , § 2(a), Apr. 6, 1978, ; , title I, § 116(a), Sept. 3, 1982, ; , div. B, title III, § 2301(b), July 18, 1984, ; , title VIII, § 802(b), Oct. 9, 1984, ; , title IX, § 9201(b)(1), (3), Apr. 7, 1986, ; , title IX, § 9201, Oct. 21, 1986, ; , § 2, Oct. 22, 1986, ; , §§ 2(a), (b),
, Oct. 31, 1986, ; , title VI, § 6202(b)(3)(C)(i), Dec. 19, 1989, ; , title I, § 103, Oct. 16, 1990, ; , Nov. 5, 1990, ; , div. A, title I, § 101(a) [title I, § 119[1(b)]], Sept. 30, 1996, , 3009–23; , title IX, § 941(a), (b), Oct. 7, 1998, , 1835.)
References in Text
Subparagraphs (C) and (D) of section
of title
, referred to in subsec. (i)(7), were redesignated subpars. (B) and (C) of section
of Title
, Internal Revenue Code, by , title VII, § 7871(a)(1), Dec. 19, 1989, .
Section 3(d)(2) of the Age Discrimination in employment Amendments of 1996, referred to in subsec. (j)(1), probably means , div. A, title I, § 101(a) [title I, § 119[2(d)(2)]], Sept. 30, 1996, , 3009–23, 3009–25, which is set out as a note under this section.
The Social Security Act, referred to in subsec. (l)(1)(B)(ii), (2)(D)(i), (ii), is act Aug. 14, 1935, ch. 531, , as amended. Titles II and XVIII of the Act are classified generally to subchapters II (§ 401 et seq.) and XVIII (§ 1395 et seq.), respectively, of chapter
of Title
, The Public Health and Welfare. For complete classification of this Act to the Code, see section
of Title
and Tables.
Amendments
1998—Subsec. (i)(6). , § 941(b), inserted “or it is a plan permitted by subsection (m) of this section.” after “accruals”.
Subsec. (m). , § 941(a), added subsec. (m).
1996—Subsec. (j). , § 101(a) [title I, § 119[1(b)(1)]], reenacted subsec. (j) of this section, as in effect immediately before Dec. 31, 1993.
Subsec. (j)(1). , § 101(a) [title I, § 119[1(b)(2)]], substituted “, the employer has complied with section 3(d)(2) of the Age Discrimination in employment Amendments of 1996 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” for “and the individual has attained the age of hiring or retirement in effect under applicable State or local law on March 3, 1983, and”.
1990—Subsec. (f)(2). , § 103(1), added par. (2) and struck out former par. (2) which read as follows: “to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter, except that no such employee benefit plan shall excuse the failure to hire any individual, and no such seniority system or employee benefit plan shall require or permit the involuntary retirement of any individual specified by section
of this title because of the age of such individual; or”.
Subsecs. (i), (j). , § 103(2), redesignated subsec. (i), relating to employment as firefighter or law enforcement officer, as (j).
Subsec. (k). , § 103(3), added subsec. (k).
Subsec. (l). added cl. (iii) in par. (2)(A), and in par. (2)(D) inserted “and solely in order to make the deduction authorized under this paragraph” after “For purposes of this paragraph” and added cl. (iii).
, § 103(3), added subsec. (l).
1989—Subsec. (g). struck out subsec. (g) which read as follows:
“(1) For purposes of this section, any employer must provide that any employee aged 65 or older, and any employee’s spouse aged 65 or older, shall be entitled to coverage under any group health plan offered to such employees under the same conditions as any employee, and the spouse of such employee, under age 65.
“(2) For purposes of paragraph (1), the term ‘group health plan’ has the meaning given to such term in section
of title
.”
1986—Subsec. (g)(1). , § 9201(b)(1), and , § 2(a), made identical amendments, substituting “or older” for “through 69” in two places.
Subsec. (g)(2). substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”, which for purposes of codification was translated as “title 26” thus requiring no change in text.
Subsec. (h). , § 9201(b)(3), and , § 2(b), made identical amendments, redesignating subsec. (g), relating to practices of foreign corporations controlled by American employers, as (h).
Subsec. (i). , § 3, temporarily added subsec. (i) which read as follows: “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 and the individual has attained the age of hiring or retirement in effect under applicable State or local law on March 3, 1983, and
“(2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter.”
See Effective and Termination Dates of 1986 Amendments note below.
added subsec. (i) relating to employee pension benefit plans.
1984—Subsec. (f)(1). , § 802(b)(1), inserted “, 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”.
Subsec. (g). , § 802(b)(2), added subsec. (g) relating to practices of foreign corporations controlled by American employers.
Subsec. (g)(1). inserted “, and any employee’s spouse aged 65 through 69,” after “aged 65 through 69” and “, and the spouse of such employee,” after “as any employee”, in subsec. (g) relating to entitlement to coverage under group health plan.
1982—Subsec. (g). added subsec. (g) relating to entitlement to coverage under group health plans.
1978—Subsec. (f)(2). provided that no seniority system or employee benefit plan require or permit the involuntary retirement of any individual specified by section
of this title because of the age of the individual.
Effective Date of 1998 Amendment
, title IX, § 941(d), Oct. 7, 1998, , provided that:
“(1) In general.—This section [amending this section and enacting provisions set out as a note below] shall take effect on the date of enactment of this Act [Oct. 7, 1998].
“(2) Effect on causes of action existing before date of enactment.—The amendment made by subsection (a) [amending this section] shall not apply with respect to any cause of action arising under the Age Discrimination in employment Act of 1967 [ U.S.C. et seq.] prior to the date of enactment of this Act.”
Effective Date of 1996 Amendment
Section
[title I, § 119[3]] of provided that:
“(a) General Effective Date.—Except as provided in subsection (b), this title [probably means section
[title I, § 119] of , amending this section and enacting and repealing provisions set out as notes under this section] and the amendments made by this title shall take effect on the date of enactment of this Act [Sept. 30, 1996].
“(b) Special Effective Date.—The repeal made by section
and the reenactment made by section
[probably means section
[title I, § 119[1(a), (b)(1)]] of , amending this section and repealing provisions set out as a note under this section] shall take effect on December 31, 1993.”
Effective Date of 1990 Amendment
Section 105 of title I of , as amended by , § 9, Dec. 12, 1991, , provided that:
“(a) In General.—Except as otherwise provided in this section, this title [amending this section and section
of this title and enacting provisions set out as notes under this section and section
of this title] and the amendments made by this title shall apply only to—
“(1) any employee benefit established or modified on or after the date of enactment of this Act [Oct. 16, 1990]; and
“(2) other conduct occurring more than 180 days after the date of enactment of this Act.
“(b) Collectively Bargained Agreements.—With respect to any employee benefits provided in accordance with a collective bargaining agreement—
“(1) that is in effect as of the date of enactment of this Act [Oct. 16, 1990]; or that is a result of pattern collective bargaining in an industry where the agreement setting the pattern was ratified after September 20, 1990, but prior to the date of enactment, and the final agreement in the industry adhering to the pattern was ratified after the date of enactment, but not later than November 20, 1990;
“(2) that terminates after such date of enactment;
“(3) any provision of which was entered into by a labor organization (as defined by section 6(d)(4) of the Fair Labor Standards Act of 1938 ( U.S.C.
)); and
“(4) that contains any provision that would be superseded (in whole or part) by this title [amending this section and section
of this title and enacting provisions set out as notes under this section and section
of this title] and the amendments made by this title, but for the operation of this section,
this title and the amendments made by this title shall not apply until the termination of such collective bargaining agreement or June 1, 1992, whichever occurs first.
“(c) States and Political Subdivisions.—
“(1) In general.—With respect to any employee benefits provided by an employer—
“(A) that is a State or political subdivision of a State or any agency or instrumentality of a State or political subdivision of a State; and
“(B) that maintained an employee benefit plan at any time between June 23, 1989, and the date of enactment of this Act [Oct. 16, 1990] that would be superseded (in whole or part) by this title [amending this section and section
of this title and enacting provisions set out as notes under this section and section
of this title] and the amendments made by this title but for the operation of this subsection, and which plan may be modified only through a change in applicable State or local law,
this title and the amendments made by this title shall not apply until the date that is 2 years after the date of enactment of this Act.
“(2) Election of disability coverage for employees hired prior to effective date.—
“(A) In general.—An employer that maintains a plan described in paragraph (1)(B) may, with regard to disability benefits provided pursuant to such a plan—
“(i) following reasonable notice to all employees, implement new disability benefits that satisfy the requirements of the Age Discrimination in employment Act of 1967 [ U.S.C. et seq.] (as amended by this title); and
“(ii) then offer to each employee covered by a plan described in paragraph (1)(B) the option to elect such new disability benefits in lieu of the existing disability benefits, if—
“(I) the offer is made and reasonable notice provided no later than the date that is 2 years after the date of enactment of this Act [Oct. 16, 1990]; and
“(II) the employee is given up to 180 days after the offer in which to make the election.
“(B) Previous disability benefits.—If the employee does not elect to be covered by the new disability benefits, the employer may continue to cover the employee under the previous disability benefits even though such previous benefits do not otherwise satisfy the requirements of the Age Discrimination in employment Act of 1967 (as amended by this title).
“(C) Abrogation of right to receive benefits.—An election of coverage under the new disability benefits shall abrogate any right the electing employee may have had to receive existing disability benefits. The employee shall maintain any years of service accumulated for purposes of determining eligibility for the new benefits.
“(3) State assistance.—The Equal employment Opportunity Commission, the Secretary of Labor, and the Secretary of the Treasury shall, on request, provide to States assistance in identifying and securing independent technical advice to assist in complying with this subsection.
“(4) Definitions.—For purposes of this subsection:
“(A) employer and state.—The terms ‘employer’ and ‘State’ shall have the respective meanings provided such terms under subsections (b) and (i) of section
of the Age Discrimination in employment Act of 1967 ( U.S.C. ).
“(B) Disability benefits.—The term ‘disability benefits’ means any program for employees of a State or political subdivision of a State that provides long-term disability benefits, whether on an insured basis in a separate employee benefit plan or as part of an employee pension benefit plan.
“(C) Reasonable notice.—The term ‘reasonable notice’ means, with respect to notice of new disability benefits described in paragraph (2)(A) that is given to each employee, notice that—
“(i) is sufficiently accurate and comprehensive to appraise the employee of the terms and conditions of the disability benefits, including whether the employee is immediately eligible for such benefits; and
“(ii) is written in a manner calculated to be understood by the average employee eligible to participate.
“(d) Discrimination in employee Pension Benefit Plans.—Nothing in this title [amending this section and section
of this title and enacting provisions set out as notes under this section and section
of this title], or the amendments made by this title, shall be construed as limiting the prohibitions against discrimination that are set forth in section 4(j) of the Age Discrimination in employment Act of 1967 [ U.S.C.
] (as redesignated by section 103(2) of this Act).
“(e) Continued Benefit Payments.—Notwithstanding any other provision of this section, on and after the effective date of this title and the amendments made by this title (as determined in accordance with subsections (a), (b), and (c)), this title and the amendments made by this title shall not apply to a series of benefit payments made to an individual or the individual’s representative that began prior to the effective date and that continue after the effective date pursuant to an arrangement that was in effect on the effective date, except that no substantial modification to such arrangement may be made after the date of enactment of this Act [Oct. 16, 1990] if the intent of the modification is to evade the purposes of this Act.”
Effective Date of 1989 Amendment
Amendment by applicable to items and services furnished after Dec. 19, 1989, see section 6202(b)(5) of , set out as a note under section
of Title
, Internal Revenue Code.
Effective and Termination Dates of 1986 Amendments
Section 7 of provided that:
“(a) In General.—Except as provided in subsection (b), this Act and the amendments made by this Act [amending this section and sections
and
of this title and enacting provisions set out as notes under this section and sections
,
,
, and
of this title] shall take effect on January 1, 1987, except that with respect to any employee who is subject to a collective-bargaining agreement—
“(1) which is in effect on June 30, 1986,
“(2) which terminates after January 1, 1987,
“(3) any provision of which was entered into by a labor organization (as defined by section 6(d)(4) of the Fair Labor Standards Act of 1938 ( U.S.C.
), and
“(4) which contains any provision that would be superseded by such amendments, but for the operation of this section,
such amendments shall not apply until the termination of such collective bargaining agreement or January 1, 1990, whichever occurs first.
“(b) Effect on Existing Causes of Action.—The amendments made by sections 3 and 4 of this Act [amending this section and section
of this title and enacting provisions set out as a note below] shall not apply with respect to any cause of action arising under the Age Discrimination in employment Act of 1967 [ U.S.C. et seq.] as in effect before January 1, 1987.”
Section 3(b) of which provided that the amendment made by section 3(a) of , which amended this section, was repealed Dec. 31, 1993, was itself repealed, effective Dec. 31, 1993, by , div. A, title I, § 101(a) [title I, § 119[1(a)]], Sept. 30, 1996, , 3009–23.
Section 9204 of subtitle C (§§ 9201–9204) of title IX of provided that:
“(a) Applicability to employees with Service after 1988.—
“(1) In general.—The amendments made by sections
9201 and
9202 [amending this section, section
of this title, and section
of Title
, Internal Revenue Code] shall apply only with respect to plan years beginning on or after January 1, 1988, and only to employees who have 1 hour of service in any plan year to which such amendments apply.
“(2) Special rule for collectively bargained plans.—In the case of a plan maintained pursuant to 1 or more collective bargaining agreements between employee representatives and 1 or more employers ratified before March 1, 1986, paragraph (1) shall be applied to benefits pursuant to, and individuals covered by, any such agreement by substituting for ‘January 1, 1988’ the date of the commencement of the first plan year beginning on or after the earlier of—
“(A) the later of—
“(i) January 1, 1988, or
“(ii) the date on which the last of such collective bargaining agreements terminate (determined without regard to any extension thereof after February 28, 1986), or
“(B) January 1, 1990.
“(b) Applicability of Amendments Relating to Normal Retirement Age.—The amendments made by section
9203 [amending sections
and
of this title and sections
and
of Title
] shall apply only with respect to plan years beginning on or after January 1, 1988, and only with respect to service performed on or after such date.
“(c) Plan Amendments.—If any amendment made by this subtitle [amending this section, sections
,
, and
of this title, and sections
and
of Title
] requires an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after January 1, 1989, if—
“(1) during the period after such amendment takes effect and before such first plan year, the plan is operated in accordance with the requirements of such amendment, and
“(2) such plan amendment applies retroactively to the period after such amendment takes effect and such first plan year.
A pension plan shall not be treated as failing to provide definitely determinable benefits or contributions, or to be operated in accordance with the provisions of the plan, merely because it operates in accordance with this subsection.
“(d) Interagency Coordination.—The regulations and rulings issued by the Secretary of Labor, the regulations and rulings issued by the Secretary of the Treasury, and the regulations and rulings issued by the Equal employment Opportunity Commission pursuant to the amendments made by this subtitle shall each be consistent with the others. The Secretary of Labor, the Secretary of the Treasury, and the Equal employment Opportunity Commission shall each consult with the others to the extent necessary to meet the requirements of the preceding sentence.
“(e) Final Regulations.—The Secretary of Labor, the Secretary of the Treasury, and the Equal employment Opportunity Commission shall each issue before February 1, 1988, such final regulations as may be necessary to carry out the amendments made by this subtitle.”
Amendment by effective May 1, 1986, see section 9201(d)(2) of , set out as an Effective Date of 1986 Amendment note under section
of Title
, The Public Health and Welfare.
Effective Date of 1984 Amendments
Section 2301(c)(2) of provided that: “The amendment made by subsection (b) [amending this section] shall become effective on January 1, 1985.”
Amendment by effective Oct. 9, 1984, see section 803(a) of , set out as a note under section
of Title
, The Public Health and Welfare.
Effective Date of 1982 Amendment
Section 116(c) of provided that: “The amendment made by subsection (a) [amending this section] shall become effective on January 1, 1983, and the amendment made by subsection (b) [enacting section
of Title
, The Public Health and Welfare] shall apply with respect to items and services furnished on or after such date.”
Effective Date of 1978 Amendment
Section 2(b) of provided that: “The amendment made by subsection (a) of this section [amending this section] shall take effect on the date of enactment of this Act [Apr. 6, 1978], except that, in the case of employees covered by a collective bargaining agreement which is in effect on September 1, 1977, which was entered into by a labor organization (as defined by section 6(d)(4) of the Fair Labor Standards Act of 1938 [section
of this title]), and which would otherwise be prohibited by the amendment made by section 3(a) of this Act [amending section
of this title], the amendment made by subsection (a) of this section [amending this section] shall take effect upon the termination of such agreement or on January 1, 1980, whichever occurs first.”
Regulations
Section 104 of title I of provided that: “Notwithstanding section 9 of the Age Discrimination in employment Act of 1967 ( U.S.C. ), the Equal employment Opportunity Commission may issue such rules and regulations as the Commission may consider necessary or appropriate for carrying out this title [amending this section and section
of this title and enacting provisions set out as notes under this section and section
of this title], and the amendments made by this title, only after consultation with the Secretary of the Treasury and the Secretary of Labor.”
Construction of 1998 Amendment
, title IX, § 941(c), Oct. 7, 1998, , provided that: “Nothing in the amendment made by subsection (a) [amending this section] shall affect the application of section 4 of the Age Discrimination in employment Act of 1967 ( U.S.C. ) with respect to—
“(1) any plan described in subsection (m) of section
of such Act (as added by subsection (a)), for any period prior to enactment of such Act [Dec. 15, 1967];
“(2) any plan not described in subsection (m) of section
of such Act (as added by subsection (a)); or
“(3) any employer other than an institution of higher education (as defined in section 101 of the Higher Education Act of 1965 [ U.S.C. ]).”
Construction of 1996 Amendment
Section
[title I, § 119[1(c)]] of provided that: “Nothing in the repeal, reenactment, and amendment made by subsections (a) and (b) [section
[title I, § 119[1(a), (b)]] of , amending this section and repealing provisions set out as a note under this section] shall be construed to make lawful the failure or refusal to hire, or the discharge of, an individual pursuant to a law that—
“(1) was enacted after March 3, 1983 and before the date of enactment of the Age Discrimination in employment Amendments of 1996 [Sept. 30, 1996]; and
“(2) lowered the age of hiring or retirement, respectively, for firefighters or law enforcement officers that was in effect under applicable State or local law on March 3, 1983.”
Transfer of Functions
Functions vested by this section in Secretary of Labor or Civil Service Commission transferred to Equal employment Opportunity Commission by Reorg. Plan No. 1 of 1978, § 2, F.R. , , set out in the Appendix to Title 5, Government Organization and Employees, effective Jan. 1, 1979, as provided by section 1–101 of Ex. Ord. No. 12106, Dec. 28, 1978, F.R. .
Study and Guidelines for Performance Tests
Section
[title I, § 119[2]] of provided that:
“(a) Study.—Not later than 3 years after the date of enactment of this Act [Sept. 30, 1996], the Secretary of Health and Human Services, acting through the Director of the National Institute for Occupational Safety and Health (referred to in this section [probably means section
[title I, § 119[2]] of ] as the ‘Secretary’), shall conduct, directly or by contract, a study, and shall submit to the appropriate committees of Congress a report based on the results of the study that shall include—
“(1) a list and description of all tests available for the assessment of abilities important for the completion of public safety tasks performed by law enforcement officers and firefighters;
“(2) a list of the public safety tasks for which adequate tests described in paragraph (1) do not exist;
“(3) a description of the technical characteristics that the tests shall meet to be in compliance with applicable Federal civil rights law and policies;
“(4) a description of the alternative methods that are available for determining minimally acceptable performance standards on the tests;
“(5) a description of the administrative standards that should be met in the administration, scoring, and score interpretation of the tests; and
“(6) an examination of the extent to which the tests are cost-effective, are safe, and comply with the Federal civil rights law and policies.
“(b) Consultation Requirement; Opportunity for Public Comment.—
“(1) Consultation.—The Secretary shall, during the conduct of the study required by subsection (a), consult with—
“(A) the Deputy Administrator of the United States Fire Administration;
“(B) the Director of the Federal Emergency Management Agency;
“(C) organizations that represent law enforcement officers, firefighters, and employers of the officers and firefighters; and
“(D) organizations that represent older individuals.
“(2) Public comment.—Prior to issuing the advisory guidelines required in subsection (c), the Secretary shall provide an opportunity for public comment on the proposed advisory guidelines.
“(c) Advisory Guidelines.—Not later than 4 years after the date of enactment of this Act [Sept. 30, 1996], the Secretary shall develop and issue, based on the results of the study required by subsection (a), advisory guidelines for the administration and use of physical and mental fitness tests to measure the ability and competency of law enforcement officers and firefighters to perform the requirements of the jobs of the officers and firefighters.
“(d) Job Performance Tests.—
“(1) Identification of tests.—After issuance of the advisory guidelines described in subsection (c), the Secretary shall issue regulations identifying valid, nondiscriminatory job performance tests that shall be used by employers seeking the exemption described in section 4(j) of the Age Discrimination in employment Act of 1967 [ U.S.C.
] with respect to firefighters or law enforcement officers who have attained an age of retirement described in such section
.
“(2) Use of tests.—Effective on the date of issuance of the regulations described in paragraph (1), any employer seeking such exemption with respect to a firefighter or law enforcement officer who has attained such age shall provide to each firefighter or law enforcement officer who has attained such age an annual opportunity to demonstrate physical and mental fitness by passing a test described in paragraph (1), in order to continue employment.
“(e) Development of Standards for Wellness Programs.—Not later than 2 years after the date of enactment of this Act [Sept. 30, 1996], the Secretary shall propose advisory standards for wellness programs for law enforcement officers and firefighters.
“(f) Authorization of Appropriations.—There is authorized to be appropriated $5,000,000 to carry out this section.”
Section Referred to in Other Sections
This section is referred to in section
of this title.
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