§ 623. — Prohibition of age discrimination.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 29USC623]
TITLE 29--LABOR
CHAPTER 14--AGE DISCRIMINATION IN EMPLOYMENT
Sec. 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\
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\1\ So in original.
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(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).
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\2\ See References in Text note below.
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(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.
(Pub. L. 90-202, Sec. 4, Dec. 15, 1967, 81 Stat. 603; Pub. L. 95-256,
Sec. 2(a), Apr. 6, 1978, 92 Stat. 189; Pub. L. 97-248, title I,
Sec. 116(a), Sept. 3, 1982, 96 Stat. 353; Pub. L. 98-369, div. B, title
III, Sec. 2301(b), July 18, 1984, 98 Stat. 1063; Pub. L. 98-459, title
VIII, Sec. 802(b), Oct. 9, 1984, 98 Stat. 1792; Pub. L. 99-272, title
IX, Sec. 9201(b)(1), (3), Apr. 7, 1986, 100 Stat. 171; Pub. L. 99-509,
title IX, Sec. 9201, Oct. 21, 1986, 100 Stat. 1973; Pub. L. 99-514,
Sec. 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 99-592, Secs. 2(a), (b),
3(a), Oct. 31, 1986, 100 Stat. 3342; Pub. L. 101-239, title VI,
Sec. 6202(b)(3)(C)(i), Dec. 19, 1989, 103 Stat. 2233; Pub. L. 101-433,
title I, Sec. 103, Oct. 16, 1990, 104 Stat. 978; Pub. L. 101-521, Nov.
5, 1990, 104 Stat. 2287; Pub. L. 104-208, div. A, title I, Sec. 101(a)
[title I, Sec. 119[1(b)]], Sept. 30, 1996, 110 Stat. 3009, 3009-23; Pub.
L. 105-244, title IX, Sec. 941(a), (b), Oct. 7, 1998, 112 Stat. 1834,
1835.)
References in Text
Subparagraphs (C) and (D) of section 411(b)(2) of title 26, referred
to in subsec. (i)(7), were redesignated subpars. (B) and (C) of section
411(b)(2) of Title 26, Internal Revenue Code, by Pub. L. 101-239, title
VII, Sec. 7871(a)(1), Dec. 19, 1989, 103 Stat. 2435.
Section 3(d)(2) of the Age Discrimination in Employment Amendments
of 1996, referred to in subsec. (j)(1), probably means Pub. L. 104-208,
div. A, title I, Sec. 101(a) [title I, Sec. 119[2(d)(2)]], Sept. 30,
1996, 110 Stat. 3009, 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, 49 Stat. 620, as
amended. Titles II and XVIII of the Act are classified generally to
subchapters II (Sec. 401 et seq.) and XVIII (Sec. 1395 et seq.),
respectively, of chapter 7 of Title 42, The Public Health and Welfare.
For complete classification of this Act to the Code, see section 1305 of
Title 42 and Tables.
Amendments
1998--Subsec. (i)(6). Pub. L. 105-244, Sec. 941(b), inserted ``or it
is a plan permitted by subsection (m) of this section.'' after
``accruals''.
Subsec. (m). Pub. L. 105-244, Sec. 941(a), added subsec. (m).
1996--Subsec. (j). Pub. L. 104-208, Sec. 101(a) [title I,
Sec. 119[1(b)(1)]], reenacted subsec. (j) of this section, as in effect
immediately before Dec. 31, 1993.
Subsec. (j)(1). Pub. L. 104-208, Sec. 101(a) [title I,
Sec. 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). Pub. L. 101-433, Sec. 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
631(a) of this title because of the age of such individual; or''.
Subsecs. (i), (j). Pub. L. 101-433, Sec. 103(2), redesignated
subsec. (i), relating to employment as firefighter or law enforcement
officer, as (j).
Subsec. (k). Pub. L. 101-433, Sec. 103(3), added subsec. (k).
Subsec. (l). Pub. L. 101-521 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).
Pub. L. 101-433, Sec. 103(3), added subsec. (l).
1989--Subsec. (g). Pub. L. 101-239 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 162(i)(2) of title 26.''
1986--Subsec. (g)(1). Pub. L. 99-272, Sec. 9201(b)(1), and Pub. L.
99-592, Sec. 2(a), made identical amendments, substituting ``or older''
for ``through 69'' in two places.
Subsec. (g)(2). Pub. L. 99-514 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). Pub. L. 99-272, Sec. 9201(b)(3), and Pub. L. 99-592,
Sec. 2(b), made identical amendments, redesignating subsec. (g),
relating to practices of foreign corporations controlled by American
employers, as (h).
Subsec. (i). Pub. L. 99-592, Sec. 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.
Pub. L. 99-509 added subsec. (i) relating to employee pension
benefit plans.
1984--Subsec. (f)(1). Pub. L. 98-459, Sec. 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). Pub. L. 98-459, Sec. 802(b)(2), added subsec. (g)
relating to practices of foreign corporations controlled by American
employers.
Subsec. (g)(1). Pub. L. 98-369 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). Pub. L. 97-248 added subsec. (g) relating to
entitlement to coverage under group health plans.
1978--Subsec. (f)(2). Pub. L. 95-256 provided that no seniority
system or employee benefit plan require or permit the involuntary
retirement of any individual specified by section 631(a) of this title
because of the age of the individual.
Effective Date of 1998 Amendment
Pub. L. 105-244, title IX, Sec. 941(d), Oct. 7, 1998, 112 Stat.
1835, 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 [29 U.S.C. 621 et seq.]
prior to the date of enactment of this Act.''
Effective Date of 1996 Amendment
Section 101(a) [title I, Sec. 119[3]] of Pub. L. 104-208 provided
that:
``(a) General Effective Date.--Except as provided in subsection (b),
this title [probably means section 101(a) [title I, Sec. 119] of Pub. L.
104-208, 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 2(a) and
the reenactment made by section 2(b)(1) [probably means section 101(a)
[title I, Sec. 119[1(a), (b)(1)]] of Pub. L. 104-208, 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 Pub. L. 101-433, as amended by Pub. L.
102-236, Sec. 9, Dec. 12, 1991, 105 Stat. 1816, provided that:
``(a) In General.--Except as otherwise provided in this section,
this title [amending this section and section 630 of this title and
enacting provisions set out as notes under this section and section 621
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 (29 U.S.C. 206(d)(4))); and
``(4) that contains any provision that would be superseded (in
whole or part) by this title [amending this section and section 630
of this title and enacting provisions set out as notes under this
section and section 621 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 630 of this title
and enacting provisions set out as notes under this section and
section 621 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 [29 U.S.C. 621 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 11 of the Age Discrimination
in Employment Act of 1967 (29 U.S.C. 630).
``(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 630 of this title and
enacting provisions set out as notes under this section and section 621
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 [29
U.S.C. 623(j)] (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 Pub. L. 101-239 applicable to items and services
furnished after Dec. 19, 1989, see section 6202(b)(5) of Pub. L. 101-
239, set out as a note under section 162 of Title 26, Internal Revenue
Code.
Effective and Termination Dates of 1986 Amendments
Section 7 of Pub. L. 99-592 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
630 and 631 of this title and enacting provisions set out as notes under
this section and sections 621, 622, 624, and 631 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 (29 U.S.C. 206(d)(4)), 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 630 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 [29 U.S.C. 621 et seq.] as in
effect before January 1, 1987.''
Section 3(b) of Pub. L. 99-592 which provided that the amendment
made by section 3(a) of Pub. L. 99-592, which amended this section, was
repealed Dec. 31, 1993, was itself repealed, effective Dec. 31, 1993, by
Pub. L. 104-208, div. A, title I, Sec. 101(a) [title I, Sec. 119[1(a)]],
Sept. 30, 1996, 110 Stat. 3009, 3009-23.
Section 9204 of subtitle C (Secs. 9201-9204) of title IX of Pub. L.
99-509 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 1054 of this title, and section 411
of Title 26, 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 1002 and
1052 of this title and sections 410 and 411 of Title 26] 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 1002, 1052, and 1054 of this title, and
sections 410 and 411 of Title 26] 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 Pub. L. 99-272 effective May 1, 1986, see section
9201(d)(2) of Pub. L. 99-272, set out as an Effective Date of 1986
Amendment note under section 1395p of Title 42, The Public Health and
Welfare.
Effective Date of 1984 Amendments
Section 2301(c)(2) of Pub. L. 98-369 provided that: ``The amendment
made by subsection (b) [amending this section] shall become effective on
January 1, 1985.''
Amendment by Pub. L. 98-459 effective Oct. 9, 1984, see section
803(a) of Pub. L. 98-459, set out as a note under section 3001 of Title
42, The Public Health and Welfare.
Effective Date of 1982 Amendment
Section 116(c) of Pub. L. 97-248 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 1395y(b)(3) of Title 42, 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 Pub. L. 95-256 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 206(d)(4) of this title]), and which
would otherwise be prohibited by the amendment made by section 3(a) of
this Act [amending section 631 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 Pub. L. 101-433 provided that:
``Notwithstanding section 9 of the Age Discrimination in Employment Act
of 1967 (29 U.S.C. 628), 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 630 of this title and enacting provisions set out as
notes under this section and section 621 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
Pub. L. 105-244, title IX, Sec. 941(c), Oct. 7, 1998, 112 Stat.
1835, 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 (29 U.S.C. 623) with
respect to--
``(1) any plan described in subsection (m) of section 4 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 4 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 [20
U.S.C. 1001]).''
Construction of 1996 Amendment
Section 101(a) [title I, Sec. 119[1(c)]] of Pub. L. 104-208 provided
that: ``Nothing in the repeal, reenactment, and amendment made by
subsections (a) and (b) [section 101(a) [title I, Sec. 119[1(a), (b)]]
of Pub. L. 104-208, 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, Sec. 2, 43 F.R. 19807, 92 Stat.
3781, 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, 44 F.R. 1053.
Study and Guidelines for Performance Tests
Section 101(a) [title I, Sec. 119[2]] of Pub. L. 104-208 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
101(a) [title I, Sec. 119[2]] of Pub. L. 104-208] 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 [29 U.S.C. 623(j)] with respect to firefighters or law
enforcement officers who have attained an age of retirement
described in such section 4(j).
``(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 626 of this title.
