OAG 1994-010.

• Case Date: March 18, 1994
• Court: Ohio

Ohio Attorney General Opinions 1994. OAG 1994-010. March 18, 1994OPINION NO. 1994-010Colonel Warren H. Davies, SuperintendentState Highway Patrol660 East Main StreetColumbus, Ohio 43205Dear Colonel Davies: Your predecessor requested an opinion regarding the application of the Age Discrimination in Employment Act (ADEA) of 1967, 29 U.S.C. §§621-634, as amended (1988 & Supp. IV 1992), to the maximum hiring age provision of R.C. 5503.01. The question presented is whether the directive in R.C. 5503.01 that troopers of the State Highway Patrol, at the time of their appointment, shall not have reached thirty-five years of age, is valid for purposes of the ADEA.

R.C. 5503.01

R.C. 5503.01 creates the State Highway Patrol as a division within the Department of Public Safety and vests the administration of the Patrol in its Superintendent. R.C. 5503.01 confers upon the Superintendent the authority to appoint troopers and radio operators, and specifies certain age limitations in that regard. R.C. 5503.01 reads, in pertinent part, as follows:

The superintendent, with the approval of the director, may appoint any number of state highway patrol troopers and radio operators as are necessary to carry out sections 5503.01 to 5503.06 of the Revised Code, but the number of troopers shall not be less than eight hundred eighty. The number of radio operators shall not exceed eighty in number. At the time of appointment, troopers shall not be less than twenty-one years of age, nor have reached thirty-five years of age, and shall have been legal residents of Ohio for at least one year, except that the residence requirement may be waived by the superintendent. No person can be disqualified as over age prior to the time he reaches thirty-five years of age.

Pursuant to R.C. 5503.01, therefore, a trooper of the State Highway Patrol, at the time of appointment, must be at least twenty-one years of age, and must not have reached thirty-five years of age. Such individual must also have been a legal resident of Ohio for at least one year, unless that residence requirement is waived by the Superintendent. Id.

Practices Prohibited by the Age Discrimination in Employment Act (ADEA) of 1967

The Age Discrimination in Employment Act of 1967, as amended, declares that its purpose is "to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment." 29 U.S.C. §621(b) (1988). Consonant with those purposes, 29 U.S.C. §623(a) (1988) declares that 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. (Emphasis added.)

See also 29 U.S.C. §623(b) (prohibited practices for employment agencies); §623(c) (prohibited practices for labor organizations); §623(d) (declaring unlawful any discrimination by an employer against persons opposing practices made unlawful by §623); §623(e) (declaring unlawful the printing or publication of employment advertisements that indicate any age preference); §623(i) (prohibited practices in the case of employee pension benefit plans). 29 U.S.C. §631(a) (Supp. IV 1992) states that the prohibitions of the ADEA "shall be limited to individuals who are at least 40 years of age."(fn1) Practices Permitted by the ADEA 29 U.S.C. §623(f) (1988 & Supp. IV 1992) permits an employer to take certain actions otherwise proscribed by §§623(a)-(c) and 623(e). Section 623(f) states, in pertinent part, that it shall not be unlawful for an employer

(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....; or

(3) to discharge or otherwise discipline an individual for good cause.

The State Highway Patrol Is An Employer for Purposes of the ADEA

29 U.S.C. §630 (1988) sets forth definitions of various terms for purposes of the ADEA. Section 630(b) provides that the term "employer" means, inter alia, "a State ... and any agency or instrumentality of a State," and §630(f) provides that the term "employee" means, inter alia, "an individual employed by any employer." The question, therefore, is whether the State Highway Patrol qualifies as an "agency" or "instrumentality" of the State of Ohio for purposes of §630(b)'s definition of "employer." The ADEA does not separately define the terms "agency" and "instrumentality" as used in §630(b). With respect to the governmental context, however, the dictionary defines "agency" as "an administrative...