In 1996, Congress restored to the Age Discrimination in Employment Act (“ADEA”) an exemption permitting state and local governments to place age restrictions on the employment of police officers and firefighters.
See
29 U.S.C. § 623(j) (1994
&
Supp V 1999). Four years later, the Chicago City Council exercised its authority under this exemption to reestablish a mandatory retirement age of 63 for certain of the City’s police and fire-fighting personnel. Police officers and firefighters who were subject to the age restriction filed two suits asserting in relevant part that the reinstated mandatory retirement program amounted to subterfuge to evade the purposes of the ADEA.
See
§ 623(j)(2). Although the text of the City’s ordinance indicated that the City was reestablishing a mandatory retirement age in furtherance of public safety, the plaintiffs asserted that in truth the City, as evidenced by the remarks of certain City Council members and City officials, acted out of bias agаinst older workers and a desire to open positions on its police and firefighting forces for younger and more diverse individuals. The City moved to dismiss the complaints, contending'that the plaintiffs had failed to state a claim of age discrimination on which the court could grant relief. The district court denied the motion, reasoning thát if the plaintiffs could prove that the City reinstated a mandatory retirement age for discriminatory reasons, the mandatory retirement program would amount to a subterfuge to evade the purposes of the ADEA.
Drnek v. City of Chicago,
192
I.
Historically, Chicago, like many other state and local governments, has placed age limits on the employment of its police and firefighting personnel. As early as 1939, for example, Chicago’s municipal code required city firefighters to retire at the age of 63.
As it was originally enacted in 1967, the ADEA by its terms did not apply to the employees of state and local governments. Congress amended the statute to include those employees in 1974. P.L. 93-259 § 28(a)(2),
88
Stat. 55, 74 (April 8, 1974). However, in view of the Tenth Amendment jurisprudence
of
the day,
see National League of Cities v. Usery,
Responding to the concerns expressed by state and local governments, Congress in 1986 amended the ADEA to exempt the mandatory retirement of state and local police and firefighting personnel from the statute’s coverage. P.L. 99-592 §§ 3, 4, 100 Stat. 3342, 3342-43 (Oct. 31, 1986). As
Pursuant to a sunset provision in the 1986 legislation, the exemption permitting the reinstatement of these age limits.expired at the end of 1993. P.L. 99-592 § 3(b), 100 Stat. 3342, 3342. In the ensuing years, -Chicago, along with other state and local governments, were again -compelled to drop their age restrictions on the employment of police and firefighting personnel.
In 1996, however, Congress reinstated the exemption,' this time without any sunset provision, and retrоactively to the date that the prior exemption had expired in 1993. P.L. 104-208 §§ 119(l)(b), 119(3)(b), 110 Stat. 3009, 3009-23 — 3009-25 (Sept. 30,1996);
see Kopec,
Four years later, the Chicago City Council adopted a mandatory retirement ordinance (“MRO”) reinstating a mandatory retirement age of 63 for its police officers and for its uniformed firefighting fire personnel.
5
In the preamble to that ordi
The four plaintiffs were Chicago police officers and uniformed firefighters who were 63 or greater when the MRO took effect and thus were forced to take immediate retirement. They filed two actions against the City asserting, in relevant part, that the City was not actually motivated by public safety purposes in enacting the MRO. The cases were consolidated in the district court. Although the plaintiffs, do not dispute at this juncture that the MRO and their involuntary retirement pursuant to the MRO sаtisfy the criteria set forth in section 623(j)(l), they allege that the MRO amounts to a subterfuge to evade the purposes of the ADEA and for that reason amounts to illegal age discrimination. Among other motives for enacting the MRO, the plaintiffs assert, the City wanted to get rid of what one city council member described as “old-timers” and “deadbeats” in the police and fire departments and to make room in those departments for younger, more racially and ethnically diverse individuals who would work harder and bring “fresh” ideas with them. This amounts to age discrimination in violation of the ADEA, in the plaintiffs’ view.
The district court denied the City’s motion to dismiss the plaintiffs’ ADEA claims.
Drnek
I,
The district court acknowledged that “[t]here is some consistency between the City’s interpretation here and the Betts/ Bell interpretation.” Drnek II, 205 F.Supp.2d at 898. However, the court was concerned that applying the Betts/Bell approach in the context of mandatory retirement would render the subterfuge provision of section 623(j)(2) “if not dead, at least moribund.” Id. Whereas the exception at issue in Betts and Bell concerned only fringe benefits, leaving all other aspects of the employment relationship protected by the ADEA’s ban on arbitrary age discrimination, section 623(j) permits an employer to terminate a worker’s employment altogether, leaving nothing in the employment relationship for the statute to protect. Id. Thus, a view of subterfuge that required the plaintiff to show that mandatory retirement is being used аs a cover for some type of age discrimination other than age-based discharge would render the “not a subterfuge” language of section 623(j)(2) “utterly meaningless.” Id. at 899. The court therefore declined to apply Bell rationale to this case. It remained convinced that' if the City had reinstated mandatory retirement with the aim of clearing older employees from the ranks of firefighters and police officers in order to make room for younger workers, as the plaintiffs alleged, that discriminatory purpose in and of itself would establish a subterfuge within the meaning of section 623(j)(2). Id.
Recognizing that there was room for disagreement on the issue, however, the court granted the City’s request to certify a question for interlocutory review.
See
28 U.S.C. § 1292(b). The City had asked the court to certify the question “whether allegedly illicit motives on the part of individual legislators and municipal officials for enacting a retirement plan that manda-torily retires police and fire persоnnel at age 63 and results in their replacement with younger workers can demonstrate subterfuge under section 623(j) of the ADEA.” The court rejected this as an appropriate question, “because it is too early in the lawsuit to determine that this is the
only
type of evidence of subterfuge that the plaintiffs could discover.”
Drnek II,
II.
This appeal calls upon us to consider under what circumstances a mandatory retirement program for pubhc safety personnel might constitute a subterfuge to evade the purposes of the ADEA. The question certified by the district court asks whether there is any evidence with which a plaintiff can demonstrate subterfuge under section 623(j)(2) if there is no violation of section 623(j)(l). We agree with the district court that subterfuge can be shown even if the requirements of subsection (j)(l) are satisfied. A plaintiff can establish subterfuge if he or she can demonstrate that a state or local government took advantage of the exemption and imposed a mandatory retirement age for police and firefighting personnel in order to evade a different substantive provision of the statute. However, because the ADEA expressly permits employers like Chicago to reinstate mandatory retirement programs for police and fire personnel and thus to discharge employees based on their age, proof that local officials exercised this right for impure motives will not in and of itself suffice to establish subterfuge for purposes of section 623(j)(2). Given that the plaintiffs’ theory of subterfuge in these cases relies solely on proof that Chicago City Council members and other City officials may have harbored discriminatory attitudes about older workers when they reinstated a mandatory retirement age of 63 for police officers and firefighters and that they adopted the MRO for illicit motives unrelated to public safety, the plaintiffs have failed to state an ADEA claim on which relief may be grantеd.
The ADEA- itself does not specify what constitutes a “subterfuge to evade the purposes” of the statute, and the Supreme Court has not specifically addressed that question within the confines of section 623(j)(2). • However, the Supreme Court’s decision in
Betts
and our own decision in
Bell
have considered the meaning of “subterfuge” for purposes of a similar provision of the ADEA, since revised. The language of section 623(j)(2) appears to have been modeled after (and is virtually identical to) the language construed in
Betts
and
Bell, see Knight v. Georgia,
At issue in
Betts
was the validity of an age-based disability retirement program for state and local government employees in Ohio. Under the terms of that program, an employee who became permanently disabled before the age of 60 was eligible for disability retirement benefits, which amounted to а minimum of 30 percent of her final average salary. Employees who became disabled after the age of 60, however, were eligible only for standard re
At the time that
Betts
was decided, the ADEA contained a provision exempting from the statute’s ban on age discrimination any bona fide employee benefit plan, including a retirement and pension plan, so long as the plan was not a subterfuge to evade the purposes of the statute. 29 U.S.C. § 623(f)(2) (1982). The parties in
Betts
conceded that the disability retirement plan at issue was bona fide, and as the Supreme Court noted, that plan fell squarely within the exemption.
At the outset of its analysis, the Supreme Court rejected the notion, reflected in the interpretative regulations, that an age-based distinction in employee benefits could only survive scrutiny under the ADEA if the employer were able to establish a cost justification for the distinction— i.e., that providing the benefit to older workers would burden the employer with added costs. In the court’s view, such a requirement could not be squared with the plain language of the statutory exemption for fringe benefit plans, which said nothing about such a justification.
The term, “subterfuge,” in the Court’s view, should be given its ordinary meaning,
id.
at 168,
The Court postulated two scenarios in which an employee benefit plan might be considered an éffort to evade the purposes of the ADEA. In the first scenario, an employer implements a provision in a benefit plan that has the effect of penalizing an employee who has spoken out against practices made unlawful by the ADEA. In that instance, the plan could be viewed as a means of retaliating against the employee for asserting his statutory rights, something which is forbidden by the anti-retaliation provision of the statute.
Id.
at 180,
The Court therefore sustained Ohio’s age-based disability retirement plan notwithstanding the lack of proof that the age cutoff of 60 was justified by cost considerations. The statutory scheme placed the burden on the plaintiff to establish subterfuge, the Court observed:
[The subterfuge prong of the exemption] is not so much a defense to a charge of age discrimination as it is a description of the type of employer conduct that is prohibited in the employee benefit plan context. By requiring a showing of actual intent to discriminate in those aspects of the employment relationship protected by the provisions of the ADEA, [the subterfuge prong] redefines the elements of a plaintiffs prima facie case instead of establishing a defense to what would otherwise be a violation of the Act. Thus, when an employee seeks to challenge a benefit plan as a subterfuge to evade the purposes of the Act, the employee bears the burden of proving that the discriminatory plan provision actually was intended to serve the purpose of discriminating in some non-fringe benefit aspect of the employment relation.
Id.
at 181,
In
Bell v. Purdue Univ., supra,
this court considered whether a university’s practice of discontinuing contributions to pension plans for employees once they reached age 65 might constitute a subterfuge.
7
Employees filed suit contending that the practice amounted to age discrimination. The university defended the practice based on the same statutory provision at issue in
Betts,
exempting a bona fide fringe benеfit plan from the statutory ban on age discrimination so long as it was not a subterfuge to evade the purposes of the ADEA. This court found
Betts
controlling, and, accordingly, it looked for proof that the university’s practice of cutting off pension fund contributions at age 65 reflected an effort to discriminate in other aspects of the employment relationship.
Although the plaintiffs in Bell highlighted “statements and anecdotal evidence that some officials at Purdue preferred younger faculty,” id. at 429, we found this evidence insufficient to support the claim of subterfuge. Arguably the evidence spoke to the university’s motives for cutting off pension contributions for older employees — the plaintiffs held it up as proof that the cutoff was adopted as a way to discourage faculty members from staying on past the age of 65. But we made clear that “the defendants cannot be liable for their motives if their conduct has not еvaded the ADEA’s prohibitions.” Id. And the plaintiffs could point to nothing suggesting that the university was using the contribution cutoff as a way to alter the wages of older employees, or alternatively to force their retirement or otherwise diminish their employment prospects. Id. at 429-BO. “The plaintiffs ... have offered no evidence that the fringe benefit cut in this case is anything more than meets the eye — an age differential in fringe benefits which is permitted under the ADEA.” Id.
Here, the plaintiffs urge us to disregard the approach to subterfuge set out in
Betts
and followed by this court in
Bell.
The Older Workers Benefit Protection Act, P.L. 101-433 § 101, 104 Stat. 978 (Oct. 16, 1990) (“OWBPA”), overruled the result in
Betts,
amending the ADEA so as to prohibit employers from disfavoring older workers in employee benefit programs except as justified by cost considerations.
See Bell,
Although Congress overruled the result of
Betts,
the manner in which it did so is telling. Rather than supplying its own definition of what constitutes a subterfuge to evade the purposes of the ADEA, Congress elected to remove the “not a subterfuge” language altogether from the exemption for benefit programs.
See
P.L. 101-433 § 103, 104 Stat. 978, 978-89. That course suggests that Congress, although displeased with the result in
Betts,
was not attempting to supplant the Court’s approach to subterfuge.
See Modderno v. King,
Betts
itself made this same point. The Court in
Betts
looked to its prior decision in
United Air Lines, Inc. v. McMann,
In section 623(j)(2), Congress has used virtually the same language that the Court construed in
Betts.
Indeed, Congress enacted'the current version of section 623(j) in 1996, years after
Betts
was decided. Had Congress intended for courts to embark on a different course with respect to subterfuge, it could have made that clear in the statutory language. Accordingly, we see no signal from Congress that subterfuge should be handled differently for purposes of section 623(j)(2) than it was by the Supreme Court in
Betts
and subsequently by this court, following
Betts’
lead, in
Bell. See Knight,
■ Among other things,
Betts
makes clear that the burden is on the plaintiffs to establish that the mandatory retirement of firefighters and police officers constitutes a subterfuge to evade the purposes of the ADEA.
We may resolve one point with dispatch. In the question that the district court certified, the court asked whether there is any evidence with which a plaintiff might establish subterfuge for purposes of section 623(j)(2) if there is no violation of section 623(j)(l). If, for example, a public employer had in place age restrictions on the employment of public safety officers prior to March 3, 1983, as Chicago did, are there any circumstances under which the reinstatement or renewed enforcement of those age limits could possibly amount to a subterfuge to evade the purposes of the ADEA? The district court understood the City to be arguing that this question must be answered in the negative, foreclosing any inquiry into subterfuge.
Cf. Knight,
Evidence that City officials had impure motives for reinstating a mandatory retirement age, however, will not by itself support an inference of subterfuge. As
Betts
makes plain, an employment plan “cannot be a subterfuge to evade the ADEA’s purpose of banning arbitrary age discrimina
Thus, proof that Chicago resumed mandatory retirement for police and fire personnel based in whole or in part on stereotypical thinking — that older individuals are not up to the rigors of law enforcement or firefighting and should make room for younger, “fresher” replacements — or for reasоns wholly unrelated to public safety, will not establish subterfuge because it does not reveal a kind of discriminatory conduct that the ADEA by its very terms forbids. The Supreme Court in
Betts
concluded that age-based decisions in disability retirement benefits were not vulnerable to challenge as a subterfuge merely because there was no proof that the age differentials were justified on a cost basis. The statute, as it was written at that time, expressly allowed such decisions.
What is necessary to establish subterfuge is proof that the employer is using the exemption as a way to evade another substantivе provision of the act.
Id.
at 181,
The district court was concerned that so limiting the means of establishing subterfuge would render the subterfuge provision of section 623(j)(2) almost meaningless. Because mandatory retirement, in contrast to a reduction in fringe benefits, effectively ends the employment relationship, the district court reasoned, it would be difficult if hot impossible for a manda-torily retired police officer or firefighter ever to show that the employer used the retirement program as a means of committing some independent form of forbidden
Yet, that is not the case. In fact, each of the two hypotheticals that the Supreme Court cited in
Betts
as examples of viable claims for subterfuge under the former version of section 623(f)(2) readily translates into the present context. First, as
Betts
makes clear and as the district court recognized, a plaintiff of course would have a claim for subterfuge if a city or state government exercised its right to reimpose age limits in order to retaliate against one or more employees for protesting practices made illegal by the ADEA.
Betts,
We owe a plaintiffs complaint a generous construction in deciding whеther it states a claim on which relief can be granted.
E.g., Boim v. Quranic Literacy Inst.,
Having answered the question certified for interlocutory review, we Remand these cases to the district court with directions to Dismiss the plaintiffs’ ADEA claims and to conduct such further proceedings as may be consistent with this opinion. We thank the parties and amicus American Association of Retired Persons for their helpful briefs.
Notes
. More recently, of course, the Supreme Court has held that Congress exceeded its authority under the enforcement clause of the Fourteenth Amendment when it purported to abrogate the States’ Eleventh Amendment immunity from suit by private individuals under the ADEA.
Kimel v. Florida Bd. of Regents,
. Congress later amended the ADEA to remove age 70 as the maximum age at which the statute applied. See P.L. 99-592 § 2(c)(1), 100 Stat. 3342, 3342 (Oct. 31, 1986).
. The exemption provided that "[i]t shall not be unlawful for an employer which is a State, a political subdivision of a State, an agency or instrumentality of a State or a political subdivision of a State, or an interstate agency to fail or refuse to hire or to discharge any individual because of such individual’s age if such action is taken:
(1) with respect to the employment of an individual as a firefighter or as a law enforcement officer and the individual has attained the age of hiring or retirement in effect under applicable State or local law on March 3, 1983, and
(2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter.
29 U.S.C. § 6230) (1988).
The 1986 legislation also called upon the United States Secretary of Labor and the E.E.O.C. to study the feasibility of examining police and firefighting personnel for physical and mental fitness as an alternative to age limitations on their employment. P.L. 99-592 § 5, 100 Stat. 3342, 3343. The legislation further directed the E.E.O.C. to proрose guidelines for the administration of such physical and mental assessments.
Id.
Although a feasibility study was completed, no guidelines for the administration of fitness testing for such workers were ever proposed.
See Kopec,
. The 1996 exemption provides as follows:
(j) Employment as firefighter or law enforcement officer.
It shall not be unlawful for an employer which is a State, a political subdivision of a State, an agency or instrumentality of a State or a political subdivision of a State, or an interstate agency to fail or refuse to hire or to discharge any individual because of such individual’s age if such action is taken—
(1) with respect to the employment of an individual as a firefighter or as a law enforcement officer, the employer has complied with section 3(d)(2) of the Age Discrimination in. Employment Amendments of 1996 if the individual was discharged after the date described in such section, and the individual has attained—
(A) the age of hiring -or retirement, respectively, in effect under applicable State or loсal law on March 3, 1983; or (B) (i) if the-individual was not hired, the age of hiring in effect on the date of such failure or refusal to hire under applicable State or local law enacted after September 30, 1996; or
(ii) if applicable State or local law was enacted after September 30, 1996, and the individual was discharged, the higher of—
(I) the age of retirement in effect on the date of such discharge under such law; and
(II) age 55; and
(2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter.
29 U.S.C. § 623(j) (1994 & Supp. V.1999).
In the 1996 legislation, Congress also directed the Secretary of Health and Human Services to study and report to Congress within three years on the feasibility of testing the ability of police and firefighters to complete public safety tasks. Within four years, the Secretary was to issue advisory guidelines for the use and administration of tests designed to gauge the mental and physical competence of police and firefighting personnеl. After those guidelines were issued, the Secretary was further directed to issue regulations identifying appropriate tests that a state or local government could use to evaluate the fitness of police officers and firefighters who had reached the mandatory retirement age specified by that government. Once those regulations were in place, state and local governments would be compelled to give their public
safety
personnel the opportunity to demonstrate their continued fitness for duty once they reached retirement age. P.L. 104-208 § 119(2),
The failure to promulgate guidelines and regulations for fitness testing gives rise to an ambiguity in the statute. Section 623(j)(l) purports to condition applicability of the exemption on
the state or
local
government's
compliance with section (3)(d)(2) of the 1996 amendment. This is an apparent reference to the fitness guidelines and regulations that the Secretary of Health and Human Services was directed to promulgate.
See Drnek I,
. In relevant part, the City's Municipal Code, as amended by the MRO, reads:
(a) Effective December 31, 2000, the age of 63 shall be the maximum age for employment of sworn members of the police department, including a sworn member who is transferred or appointed to a supervisory or administrative position.
(b) Effective December 31, 2000, the age of 63 shall be the maximum age for employment of any member of the uniformed service of the fire department, the duties of whose position are primarily to perform work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting apparatus and equipment, including an employee engaged in this activity who is transferred or appointed to a supervisory or administrative position ....
* * * * * *
(d) All persons to whom this ordinance applies shall be retired upon attainment ofage 63. Any person to whom this ordinance applies whose age is 63 or more on December 31, 2000 shall be retired upon that date.
Hs ❖ Hi #
Municipal Code of Chicago § .2-152-410 (Lexis Nexis 2001).
. The preamble to the MRO stated:
WHEREAS, The Safely of the citizens of the City of Chicago is of the utmost concern to the City Counсil of the City of Chicago; and
WHEREAS, The citizens of the City of Chicago deserve the most effective police and fire protection possible;
WHEREAS, The City Council finds that these goals are served by returning to the mandatoiy retirement age of sixty-three which had historically applied to sworn police and uniformed firefighters; and
WHEREAS, Both the Illinois Legislature and United States Congress have recognized the necessity of allowing municipalities to institute mandatory retirement for police and fire personnel;
Journal of Proceedings in the Chicago City Council Journal, May 17, 2000, 32900-32901.
. An amendment to the ADEA which took effect after the plaintiffs filed suit required an employer to continue contributing to a pension fund on an employee's behalf until the employee actually retired. P.L. 99-509 § 9201, 100 Stat.1973, 1973-74 (Oct. 21, 1986);
see Bell,