By: Jerry Nix | Freewavemaker, LLC

Date Published: September 7, 2023

Did you know …

There are some occupations in the country that have mandatory retirement ages?

For example, the following are some occupations with mandatory retirement ages in America:

• Airline pilots: 65 years old
• Air traffic controllers: 56 years old
• Firefighters: 57 years old, or 55 years old with 20 years of service
• Nuclear power plant operators: 65 years old
• Police officers: 57 years old, or 55 years old with 20 years of service
• Military Personnel: Varies by branch of service

There are a few exceptions to these mandatory retirement ages. For example, airline pilots can be allowed to fly beyond the age of 65 if they pass certain physical and mental tests. Firefighters can be allowed to continue working past the age of 57 if they are in good health and have not been injured on the job.

Mandatory retirement ages have been controversial in recent years. Some people believe that they are discriminatory and that they prevent older workers from continuing to contribute to the workforce. Others argue that mandatory retirement ages are necessary to protect the safety of the public and to ensure that workers are able to perform their jobs safely and effectively.

The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against employees on the basis of age. However, the ADEA does allow for mandatory retirement in certain occupations. The ADEA also allows for exceptions to mandatory retirement ages if the employee is able to perform the essential functions of the job with or without reasonable accommodation.

If you are considering a career in an occupation with a mandatory retirement age, it is important to be aware of the age restrictions and the exceptions to those restrictions. You should also talk to your employer about their policies on mandatory retirement.

Well, let’s get one thing clear …

I am retired and so glad of it. If I was not retired, I would not have time to write these articles for your reading pleasure (or ride my motorcycle and play golf). I have to tell you also, because of all this writing, I’ve learned more in my 5 years of retirement than I ever learned in my 50 years prior to retirement. More of us should retire early! At least that’s my opinion.

In my previous occupation (for 42 years) I was a financial advisor, a manager of a team of financial advisors and a Registered Principal for financial advisors. In my team I had a financial advisor who, when I met him, was about 82 years of age. About three years later I noticed that he’d start to forget things and would lose things. For example, he’d lose or forget to turn in a check that a client gave him just hours earlier. One time he held a check of over a month that a client had given him for investments. Needless to say, the market went up during that month and I had to jump through a lot of hoops to have the corporate office backdate his investment to the proper date that they should have received the check for this particular mutual fund. I was on the hook for half the company’s losses and the advisor, then about 85, was on the hook for the other half. But it was the right thing to do for the client.

In the financial services field at the time (I’m not certain about now) there was no Mandatory Retirement Age. I asked my company about why there was not mandatory retirement ages and it all came back to the Age Discrimination in Employment Act (ADEA)

It was at this time that I had to, though it hurt, I had to force this advisor to step down and retire, with or without the company and the ADEA blessings. I’ve always believed that just because there is a law that forbids something … the law is not always right. The same can be said about things that are illegal. Just because they are illegal does not mean they are necessarily wrong.

This man had given 55 years of his life to this company and his clientele and thought he could give a lot more … but it just was not possible. He was losing his mental capacity – and more mistakes like this could have bankrupted both of us. There were a lot of tears shed by him, me and his clients and family. However, it was not only the right thing to do … it was the only thing to do … legal or not.

Now what about those Supreme Court Justices?

Supreme Court justices have lifetime appointments. There is no mandatory retirement age for Supreme Court justices. However, there is a tradition that justices will retire at the age of 70. This tradition began with Chief Justice John Marshall, who retired at the age of 70 in 1835. Since then, most justices have retired at the age of 70 or shortly thereafter.

There are a few reasons why justices may choose to retire at the age of 70. One reason is that they may feel that they are no longer as sharp as they used to be and that they are not able to keep up with the demands of the job. Another reason is that they may want to spend more time with their families or pursue other interests. And finally, they may want to make way for younger justices who they believe can bring new ideas and perspectives to the court.

Of course, there are also justices who choose to stay on the court beyond the age of 70. Some justices may feel that they are still able to do the job effectively, while others may be motivated by a desire to see certain cases through to the end. There is no right or wrong answer when it comes to when a justice should retire. It is a personal decision that each justice must make for themselves.

In recent years, there has been some debate about whether or not the Supreme Court should have a mandatory retirement age. Some people believe that it would be helpful to have a mandatory retirement age so that justices do not stay on the court for too long and become out of touch with the needs of the country. Others argue that a mandatory retirement age would be an infringement on the justices’ freedom of choice.

Ultimately, the decision of whether or not to have a mandatory retirement age for Supreme Court justices is a political one. It is up to Congress to decide whether or not to change the law.

Even though many do retire at age 70 (it’s traditional, not mandatory) there have been a few that have worked well beyond that age. Here are a few listed here:

• John Paul Stevens: Stevens served on the Supreme Court from 1975 to 2010. He was 90 years old when he retired.

• Antonin Scalia: Scalia served on the Supreme Court from 1986 to 2016. He was 79 years old when he died in office.

• Ruth Bader Ginsburg: Ginsburg served on the Supreme Court from 1993 to 2020. She was 87 years old when she died in office.

• Stephen Breyer: Breyer is the current oldest justice on the Supreme Court. He is 83 years old and has not yet announced his retirement plans.

But what about congressional personnel?

Why don’t they have a mandatory retirement age? I personally believe they should – but they make the laws that require others to have one (and some not to have one) … but their laws just do not affect them. Here are a few reasons why there is no mandatory retirement for members of Congress now:

• The Constitution does not specifically mention mandatory retirement for members of Congress. The Constitution only sets the minimum age for members of Congress, which is 25 years old for the House of Representatives and 30 years old for the Senate.
• There is a strong tradition of seniority in Congress. Seniority is the length of time that a member of Congress has served in the body. Seniority gives members of Congress power and influence, and it can be difficult for younger members to challenge the seniority system.
• There is a concern that mandatory retirement would discriminate against older people. The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against employees on the basis of age. This means that it would be difficult to pass a law that would force members of Congress to retire at a certain age.
• There is a belief that older members of Congress have valuable experience. Older members of Congress often have more experience and knowledge than younger members. This experience can be valuable in making decisions about complex issues.

Despite these reasons, there is some support for the idea of mandatory retirement for members of Congress. Some people believe that it would help to ensure that Congress is more representative of the population and that it would make it easier for younger people to get elected. Others believe that it would help to prevent Congress from becoming too entrenched in the status quo.

Whether or not mandatory retirement for members of Congress is a good idea is a complex issue with no easy answers. There are valid arguments on both sides of the issue. Ultimately, it is up to the American people to decide whether or not they want to change the law.

The Age Discrimination in Employment Act:

I’ve mentioned the ADEA a couple of times. Exactly what is it?

The Age Discrimination in Employment Act (ADEA) generally prohibits employers from discriminating against employees on the basis of age. This means that employers cannot force employees to retire based on their age. However, there are some exceptions to the ADEA, such as for jobs that require certain physical or mental abilities.

The ADEA allows employers to have a mandatory retirement age if the age is necessary to the safe and efficient operation of the business. This is known as a bona fide occupational qualification (BFOQ). For example, an airline may have a mandatory retirement age for pilots because it is necessary to ensure that pilots have the physical and mental abilities to safely operate airplanes.

QUESTION: Doesn’t it make sense then to make sure a person has the mental capability to safely control the country (i.e., members of Congress)?

The ADEA also allows employers to have a mandatory retirement age if it is required by law. For example, the military has mandatory retirement ages for certain ranks.

If an employer wants to have a mandatory retirement age, it must be able to justify the age to the Equal Employment Opportunity Commission (EEOC). The EEOC will consider the following factors in determining whether the age is justified:

• The nature of the job
• The safety of the employee and the public
• The cost of providing reasonable accommodations to older employees
• The availability of younger employees who can perform the job

If the EEOC finds that the age is not justified, the employer cannot enforce the mandatory retirement age.

In addition to the ADEA, there are some state laws that prohibit mandatory retirement. These laws vary from state to state, so it is important to check the laws of the state where the employer is located.

What states do not require mandatory retirement?

Actually, more than half of them.

As of 2022, there are 29 states in the United States that do not require mandatory retirement due to age or occupation. These states are:

• Alaska
• Arizona
• California
• Colorado
• Connecticut
• Delaware
• Hawaii
• Illinois
• Indiana
• Iowa
• Kentucky
• Maine
• Maryland
• Massachusetts
• Minnesota
• Nevada
• New Hampshire
• New Jersey
• New Mexico
• New York
• North Carolina
• Oregon
• Pennsylvania
• Rhode Island
• South Dakota
• Tennessee
• Utah
• Vermont
• Virginia
• Washington
• West Virginia
• Wisconsin

In these states, employers cannot force employees to retire based on their age. However, there are some exceptions to this rule. For example, employers may be able to have a mandatory retirement age for jobs that require certain physical or mental abilities.

It is important to note that these laws can change, so it is always best to check with the state’s labor department to get the most up-to-date information.

Here are some of the reasons why these states have eliminated mandatory retirement:

• To promote fairness and equality in the workplace.
• To allow older workers to continue to contribute to the workforce.
• To address the shortage of skilled workers.
• To reduce discrimination against older workers.

The elimination of mandatory retirement has been a positive development for older workers. It has allowed them to continue to work and contribute to the workforce, and it has helped to reduce discrimination against them. This is all fine and good if the person is actually capable mentally and physically to do the job. It does not take a medical professional, a politician or a court to decide this … it is, after all, not rocket science.

Here is a good question:

Why have a Federal Law like the Age Discrimination in Employment Act if we are going to even consider exceptions to the law or not require all states to follow the law?

Another good question is if one group of people must be forced into retirement due to age … why shouldn’t all people be forced into retirement due to age?

Take for example the military!

The mandatory retirement age for people in the United States military varies depending on their branch of service and their rank.

Army: The mandatory retirement age for soldiers in the Army is 62 years old for officers and 60 years old for enlisted personnel. However, there are a few exceptions to this rule. For example, officers in certain medical specialties can retire at age 64, and enlisted personnel with 20 years of service can retire at age 55.

Navy: The mandatory retirement age for sailors in the Navy is 62 years old for officers and 57 years old for enlisted personnel. However, there are a few exceptions to this rule. For example, officers in certain medical specialties can retire at age 64, and enlisted personnel with 20 years of service can retire at age 55.

Air Force: The mandatory retirement age for airmen in the Air Force is 62 years old for officers and 60 years old for enlisted personnel. However, there are a few exceptions to this rule. For example, officers in certain medical specialties can retire at age 64, and enlisted personnel with 20 years of service can retire at age 55.

Marine Corps: The mandatory retirement age for Marines in the Marine Corps is 62 years old for officers and 57 years old for enlisted personnel. However, there are a few exceptions to this rule. For example, officers in certain medical specialties can retire at age 64, and enlisted personnel with 20 years of service can retire at age 55.

• Isn’t it interesting that those who are supposed to “keep you alive” and allowed to work to the age when most get the shakes and those who are trained to “take you out of life” are forced into retirement at an earlier age? And of course, the lower-paid enlisted personnel are forced into retirement before the higher paid officers are. Almost sounds like “Corporate America” to me.

It is important to note that these are just the mandatory retirement ages. Soldiers can retire at an earlier age if they choose to do so. They can also be forced to retire at an earlier age if they are no longer able to perform their duties due to age or health reasons.

The mandatory retirement age for soldiers is set by Congress and can be changed at any time. The current mandatory retirement ages were set in 2006.

Again, Congress sets mandatory retirement ages for everyone except themselves and anyone else in the Executive Branch or Judicial Branches of Government. However, the Executive Branch (the US Presidency) is limited to only two terms and Congress is limited to however many times they can be reelected, while the Judicial Branch is lifetime appointments.

Earlier I said …

“Ultimately, it is up to the American people to decide whether or not they want to change the law.” Well, it seems that is a lot easier said than done.

How can the American People change the law to require retirement in Congress when it is Congress that writes and passes the laws?

The American people can change the law to require retirement in Congress through the following steps:

1. Elect representatives who support mandatory retirement. The first step is to elect representatives who are willing to support mandatory retirement for members of Congress. This can be done by voting for candidates who have made mandatory retirement a part of their platform.
   1. I would recommend before casting your vote for any elected official you contact their office and find out where they stand on Mandatory Retirement for Congress. If they are not for it … then consider not casting a vote for them, if this is really important to you. By all means, let them know why you will not vote for them. If enough people do this, things may change.
2. Start a grassroots movement. Once there is a critical mass of support for mandatory retirement, a grassroots movement can be started to pressure Congress to act. This can involve organizing protests, writing letters to Congress, and contacting elected officials.
   1. I certainly would not start a protest … I’m not that kind of person. However, I do write letters and contact elected officials. One of the things I’ve learned since I retired is that many are either too busy or too lazy to do even this.
3. File a lawsuit. If Congress is unwilling to act on mandatory retirement, a lawsuit can be filed challenging the constitutionality of the current law. This would require a court to decide whether or not the Age Discrimination in Employment Act (ADEA) prohibits mandatory retirement for members of Congress.
   1. And just who has the money and time to even consider filing a lawsuit against the U.S. Government? I will talk more about this nonsense in the section below.

It is important to note that changing the law to require retirement in Congress would be a difficult task if not an impossible one. Congress is often resistant to change, and there is a strong tradition of seniority in the body. However, if there is enough public support for mandatory retirement, it is possible that Congress could be persuaded to act. However, as you will see in the section below … I believe this all has to start in Congress with a person who does not expect to serve but one term or expects to be impeached by his fellow members.

Here are some additional things that the American people can do to support mandatory retirement for members of Congress:

• Educate themselves about the issue. The more people who understand the issue of mandatory retirement, the more likely it is that Congress will take action.
• Talk to their friends and family about the issue. The more people who are aware of the issue, the more pressure there will be on Congress to act.
• Support organizations that are working to promote mandatory retirement. There are a number of organizations that are working to promote mandatory retirement for members of Congress. By supporting these organizations, the American people can help to raise awareness of the issue and put pressure on Congress to act. You can find these organizations by simply researching them on the internet.

There are a couple of public organizations that I am aware of that do support mandatory retirement for Congressional Members. Here is a list of the ones I found for you:

• National Active and Retired Federal Employees Association (NARFE): NARFE is a non-profit organization that represents the interests of federal employees and retirees. NARFE supports a mandatory retirement age for members of Congress, arguing that it would help to ensure that Congress is more representative of the population and that it would make it easier for younger people to get elected.
  • https://www.narfe.org/
• Alliance for Retired Americans (ARA): ARA is a non-profit organization that advocates for the rights of retired Americans. ARA supports a mandatory retirement age for members of Congress, arguing that it would help to break the cycle of incumbency and that it would make it easier for new ideas and perspectives to be represented in Congress.
  • https://retiredamericans.org/

Now let’s talk about Suing the Federal Government since it was mentioned to file a lawsuit if Congress is unwilling to act on Mandatory Retirement!

Can you really sue the government without their permission?

The United States government can be sued without its permission in some cases, but not in others. This is because of the doctrine of sovereign immunity, which holds that the government cannot be sued without its consent. In other words, “The King Does No Wrong.”

There are a few exceptions to the doctrine of sovereign immunity. These exceptions include:

• When the government consents to be sued. The government can consent to be sued by passing a law that waives its sovereign immunity.
• When the government is acting in a proprietary capacity. The government is acting in a proprietary capacity when it is engaged in an activity that is similar to what a private person or business could do. For example, the government can be sued for breach of contract if it enters into a contract with a private person or business.
• When the government is violating the Constitution. The government can be sued for violating the Constitution, even if it has not consented to be sued. This is because the Constitution is the supreme law of the land, and the government is bound by it. However, remember that Congressional Mandatory Retirement is not covered under the constitution – so as of now they are not violating the constitution.

The doctrine of sovereign immunity is a complex area of law, and there are many exceptions to it. If you are considering suing the government, it is important to speak with an attorney to discuss your options. I think most attorneys (and I am not an attorney) would tell you not to waste time, energy, or money trying to sue the government for not enacting mandatory retirement for congressional members.

In summary …

There you have it folks. Retirement is not for everyone and it is for some, and for some, it is forced on them. Not saying it’s fair and just … just saying I’ve enjoyed my retirement for the past five years. If you don’t want to retire and it is not forced on you … don’t retire (unless you can’t physically or mentally do the job). If you do want to retire and can afford to … by all means retire and make room for someone else to work in your field.

The bottom line is that most jobs and retirement should not be based on age but rather on physical ability and mental competency and what you want out of life. Personally, I don’t think it is fun or wise to work till you drop dead … but that’s just my opinion.

Have a great day!