Key Point 8-13. The federal Age Discrimination in Employment Act prohibits employers with 20 or more employees, and engaged in interstate commerce, from discriminating in any employment decision on the basis of the age of an employee or applicant for employment who is 40 years of age or older. The Act does not exempt religious organizations. Many states have similar laws that often apply to employers having fewer than 20 employees.
In 1967, Congress enacted the Age Discrimination in Employment Act to prohibit employers engaged in an industry affecting commerce and employing at least 50 employees from making employment decisions that discriminate against individuals from 40 to 65 years old on account of age.117 29 U.S.C. §§ 621-634.Congress later amended the Act to apply to employers employing 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year. Congress also expanded the class of protected employees to include all persons 40 years of age and older.
The Act specifies that “it shall not be unlawful for an employer … to observe the terms of … a bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of [the Act] … or to discharge or otherwise discipline an individual for good cause.”118 29 U.S.C. § 623(f).Ordinarily, an employee benefit plan will be considered to be “bona fide” if it is genuine and pays substantial benefits.
This ban on age discrimination applies to all employers, including religious organizations, that have 20 or more employees and that are engaged in an industry or activity “affecting commerce.” The “commerce” and “employee” requirements are discussed earlier in this chapter. Note that the age discrimination law only addresses discrimination committed by employers against employees or applicants for employment.
The United States Supreme Court issued a unanimous ruling in 2012 affirming the “ministerial exception.”119 Hosanna–Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012). The Hosanna-Tabor case is addressed in sections 2-04.1 and 8-10.1 of this text.The ministerial exception is an exception to the liability of churches under state and federal employment discrimination laws for the employment discrimination claims of ministers. As a result, it is unlikely that the civil courts will entertain employment discrimination claims of clergy against their employing church.