PR Mandatory Retirement Age for Police not Discriminatory

July 9, 2009 ( - The 1st U.S. Circuit Court of Appeals has found that the forced retirement of more than two dozen Puerto Rican police officers did not violate the Age Discrimination in Employment Act (ADEA).

Affirming a district court’s dismissal of the officers claims, the appellate court pointed out that a 1996 amendment to the ADEA provided a safe-harbor provision allowing a public employer to impose mandatory retirement on law enforcement officers and firefighters who either attain the age of retirement that was in place for those employees as of March 3, 1983, or – if the employer’s age limit was enacted after the 1996 amendment took effect – the higher of the age contained in the post-1996 enactment or age fifty-five.

The appellate court rejected the officers’ argument that the Commonwealth was prohibited by the 1996 amendment to the ADEA from lowering the mandatory retirement age for firefighters and law enforcement officers that was in effect as of March 3, 1983. The court said the “statute explicitly provides that States or their subdivisions may discharge a law enforcement officer or firefighter pursuant to a mandatory retirement plan that either was in effect on March 3, 1983 or was enacted after September 30, 1996. Nothing in the language of the provision even suggests that governments that had mandatory retirement laws in place as of March 3, 1983 could not enact new laws with lower retirement ages after September 30, 1996.”

The Puerto Rico legislature amended its Government Personnel Retirement Act, Law 181, in 2003 to lower the mandatory retirement age to fifty-five for police officers and firefighters with thirty years of service. According to the court opinion, the preamble to Law 181 framed the retirement scheme as a way to promote modernization and innovation by bringing new officers into the public safety forces. The preamble further stated that “no discrimination is being applied to the members of the Police or Firefighters Corps for reason of age.” Rather, the motivation was “to give a higher security to the people and to protect the security” of police officers and firefighters.

The mandatory retirement provision was again amended in 2005. Under Act No. 22, police officers and firefighters with thirty years of service could take voluntary retirement at age fifty-five, but the mandatory retirement age was changed to fifty-eight.

The 1 st Circuit also rejected the officers’ contention that, even if they were lawfully subject to retirement at age fifty-five, the Commonwealth had to give them the opportunity to avoid discharge by taking performance tests that could prove their physical and mental fitness to continue working. According to the opinion, although Congress expected guidance on such testing to be in place within about four years after enactment of the 1996 amendment, the legislation states that employers seeking the benefit of the safe-harbor provision must use the tests identified by the Secretary of Health and Human Services once regulations identifying those tests have been issued, and the particular tests referenced in the statute have never been identified by the Secretary of HHS

The case isCorrea-Ruiz v. Fortuno,1st Cir., No. 06-2578.