Retirement Incentives in the Twenty First Century: The Move Toward Employer Control of the ADEA

Retirement has become an increasingly important topic of public policy discussion in the United States, as well as an accepted, and even cherished, goal for many American workers. Consequently, it is not surprising that the Age Discrimination in Employment Act (ADEA) recognized, somewhat inartfully, the importance of retirement. When originally passed, the ADEA expressly provided an exemption for any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of the ADEA. In 1986, Congress amended the ADEA to eliminate mandatory retirement, but made clear in its legislative history that voluntary retirement was a valid employee choice.

The interaction of retirement and the ADEA became more explicit when Congress amended the Act again in 1990 to allow employers to observe the terms of "a voluntary early retirement plan consistent with" the purposes of the ADEA. The 1990 amendments also expressly allowed waivers as part of retirement incentive plans. Consistent with this pattern of amendments under the ADEA, courts similarly have been solicitous to the interests of both employers and employees in providing retirement incentives, arguably to the extent of minimizing other goals of the ADEA such as promoting employment.