Human Resource Blog

South Dakota Age Discrimination

I’m a manager in South Dakota. I’m tired of immature employees, and want to hire only applicants who are over the age of 25. Is this age discrimination under any law?

You would be entirely within your rights to do so. No South Dakota or federal law says that hiring only workers over 25 would amount to age discrimination. Usually, it’s legal to offer preferential treatment to older workers, but illegal to offer it to younger workers.

Court cases uphold your right as an employer to give preferential treatment to older workers. Take the case of retirement plans. Employers may offer them only to workers over a certain age – 62 or 65, for example. On the other hand, courts have not supported the preferential treatment of younger workers. One judicial decision, for example, ruled that an early retirement buyout in the rail industry for workers aged 50 to 60 discriminated against workers beyond age 60. The plan had to be expanded to include workers over age 60. That was despite the fact that workers in that older age group qualified for a completely different pension package already.

The ADEA, or the Age Discrimination in Employment Act of 1967, is the key legislation. It prohibits discrimination of workers 40 years old and beyond, whether in hiring, layoffs, training, pay, harassment, or other areas, for businesses with 15 or more employees.

There are some instances in which age has been found to be what is called a “bona fide occupational qualification.” For public safety reasons, it is legal to establish limits at either the bottom or top end of the age spectrum. Police departments may hire only those over 21, for example, and airlines may retire pilots at age 65.

The U.S. Age Discrimination Act of 1975 provides age discrimination protection to older workers in employment settings where federal funding is received. That might include nursing homes, hospitals, and other social services.

Although several states, notably including Kansas, extend the protection against age discrimination to anyone over 18, they are in the minority. And, South Dakota is not one of them. JH