Mandatory retirement

JAlderman · June 2003

Hi All,
This is my first time using this forum. I'm really hoping some of you can advise me on this issue. My organization is a large multi-specialty medical group practice with over 60 physicians and 30+ mid-level clinicians (physician assistants, nurse practitioners, mid-wives, etc). The senior leadership is considering whether to impose a mandatory retirement age for the physicians and other clinicians. The issue is we would rather have someone retire (and be able to plan for it) then have to wait until issues arise related to competancy and have to terminate them. Can we legally impose a mandatory retirement age? Thanks.

Don D · June 2003

No.

Nat · June 2003

[font size="1" color="#FF0000"]LAST EDITED ON 06-10-03 AT 01:39PM (CST)[/font][p]I don't think you can have a mandatory retirement age. The ADEA prohibits this except for certain positions such as airline pilots, air traffic controllers and other certain public safety positions. Maybe physicians fall into this "other" category, I don't know. I would consult with counsel before even considering this. x:-/

Susan Fentin MA · June 2003

Hello! Welcome to the Forum! I'm Susan Fentin, associate editor of the Massachusetts Employment Law Letter, and an attorney with Skoler, Abbott & Presser, where we practice exclusively labor and employment law and represent only management. Because Skoler Abbott does not represent your company with regard to your labor and employment matters, ethical constraints keep me from giving you any actual legal advice. I can comment generally on your question, however. There is a recent Massachusetts Appeals Court decision that speaks to this issue. To be legal under state and federal anti-discrimination laws, mandatory retirement ages must be supported by what's called a bona fide occupational qualification, or BFOQ. The standard for proving a BFOQ is quite high. There are only a few other circumstances in which the courts will allow a mandatory retirement age to be enforceable, for example where authorized by statute. In Gates v. Flood, decided by the Massachusetts Appeals Court in April, a doctor who worked for the corrections department was told he had to retire by age 65. He filed suit alleging age discrimination. The court found that he was not covered by the statute that required retirement for certain corrections officers. The court concluded that an employer's mistaken belief that age was a BFOQ is not a defense to age discrimination. Based on this case, I would conclude that age would probably not be a BFOQ for a physician and that requiring mandatory retirement would be discriminatory.

If you have any other questions, please feel free to contact me. I can be reached at [email]sfentin@skoler-abbott.com[/email] or by telephone at (413) 737-4753. Thanks and good luck!

Susan Fentin

Brad Forrister · June 2003

Ironically, under the Age Discrimination in Employment Act (ADEA), your "senior leadership" may be able to impose a mandatory retirement age on themselves but not on anyone else. Partners, CEOs, and so forth sometimes don't qualify as "employees" for ADEA purposes (sometimes they do, however).

Check out the article at:
[a href=
"http://search.mleesmith.com/cgi-bin/starfinder/0?path=e&id=empfast&pass=&format=wstory&search=138939"][/a]

But for everyone else, you'll probably need to start looking for incentives rather than mandatory actions.

Brad Forrister
Director of Publishing
M. Lee Smith Publishers

JAlderman · June 2003

[font size="1" color="#FF0000"]LAST EDITED ON 06-11-03 AT 02:23PM (CST)[/font][p]Thank you all so much for responding to my inquiry. That is essentially what I thought but it is helpful to have backup information to support my argument. I'm very impressed with the questions and quality of information that gets exchanged in this forum and will definitely start using this resource more often. Thanks again.

Mandatory retirement

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