On certification to the Superior Court, Appellate Division, whose opinion is reported at 222 N.J. Super. 313 (1988).
For affirmance -- none. For reversal -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein. The opinion of the Court was delivered by Pollock, J.
These appeals involve challenges to the enforcement of early mandatory retirement provisions for law-enforcement officers and firefighters who are enrolled in the Police and Firemen's Retirement System (P & FRS) or the Public Employees Retirement System (PERS). We hold that the 1986 amendments to the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 to 634, permit the early mandatory retirement of such officers and firefighters who serve primarily in an administrative or supervisory capacity.
The Appellate Division succinctly summarized the relevant facts:
The facts are not disputed in any of these appeals. All plaintiffs were advised by a February 19, 1987 directive issued by the Division of Pensions (Division) in the State Department of the Treasury, based on legal advice from the Attorney General, that they had to retire because they were over age 65. In the appeal brought by Edward Boylan and others, all of the plaintiffs serve as officers in various positions in police and fire departments. The plaintiffs include one police chief, four deputy chiefs, three police captains and one detective. They also include one fire chief, two battalion chiefs and two captains from fire departments. An additional plaintiff named in the complaint is one superintendent Nixon. Each plaintiff is between the age of 65 and 70 years and is a member of either the P & FRS or the PERS.
In the Comer appeal plaintiffs, paid fire chiefs in their respective municipalities, are between ages 65 and 70, and are members of the P & FRS. In the third appeal Beattie is a deputy fire chief who is 68 years of age. In the Fiorentino appeal the plaintiffs include a fire captain, the City of Ocean City, a collective bargaining representative and Firemen's Mutual Benevolent Association, Local 27.
The plaintiffs in each of these matters, with the exception of the Beattie appeal, instituted suit seeking injunctive relief against the enforcement of the mandatory retirement requirement. The matters were transferred to the Appellate Division in three of the appeals on orders entered by the trial court. Beattie took a direct appeal to this court from the mandatory retirement directive issued by the Division of Pensions and sought and obtained injunctive relief pending disposition of the appeal. [222 N.J. Super. 313, 317-18 (footnote omitted).]
As that summary indicates, plaintiffs held supervisory positions in county or municipal, police, and fire departments in New Jersey. Each is a member of either the P & FRS or PERS pension system and each is over sixty-five but under seventy. The statutory provisions of both systems generally require members who are law-enforcement officers and firefighters to retire at age sixty-five whether they serve in supervisory or front-line positions. N.J.S.A. 43:15A-99; N.J.S.A. 43:16A-5(1).
Plaintiffs, like many other people who reach retirement age, are reluctant to see their careers come to an end. That reluctance is reinforced in the present case by various changes in federal legislation over the last two decades. In these changes, Congress has sought to balance the competing interests of employees, young and old, and the public. Our task is not to strike a balance of our own, but to recognize the balance struck by Congress.
In 1983, the United States Supreme Court held that the tenth amendment to the United States Constitution, which reserves to the states the powers not delegated to the United States, did not bar the extension of the ADEA to the States. EEOC v. Wyoming, 460 U.S. 226, 103 S. Ct. 1054, 75 L. Ed. 2d 18 (1983). The Court found the ADEA to be a valid exercise of federal authority under the Commerce Clause. Id. at 243, 103 S. Ct. at 1064, 75 L. Ed. 2d at 33. Later that year, the Attorney General of New Jersey issued a formal opinion concluding that the pension provisions requiring mandatory retirement before age seventy for uniformed police officers and firefighters were
unenforceable under the ADEA, unless those provisions were a bona fide occupational qualification. 5 Op.N.J.Att'y Gen. (1983). The amendments to the ADEA that are the subject of this action took effect in 1986. Based on those amendments, the Attorney General issued a second formal opinion concluding that the 1986 amendments allowed the mandatory retirement provisions in the New Jersey pension plans. 12 Op.N.J.Att'y Gen. (1987).
Against that background, the Appellate Division held that the 1986 amendment allowed the mandatory retirement of only those plaintiffs involved in "active" law-enforcement or firefighting efforts. 222 N.J. Super. at 335-36. Interpreting the definitional sections of the 1986 amendments, the Appellate Division further held that the exception to the ADEA's general prohibition against age discrimination would not apply to supervisory firefighters not "directly" and "primarily" involved in firefighting or to supervisory law-enforcement officers not "directly" involved in law enforcement. Id. at 331. The court then remanded the case to the Division of Pensions for the determination whether the 1986 amendments applied to the individual plaintiffs. We granted the State's petition for certification, 111 N.J. 648 (1988), and now reverse.
As the preceding statement of the factual and procedural history indicates, this case turns on the meaning of the 1986 amendments to the ADEA. When interpreting the 1986 amendments, our goal obviously is to discern the intent of Congress. Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S. Ct. 1893, 1898, 44 L. Ed. 2d 525, 533 (1975). We begin with the words of the statute.
Enacted in 1967, the ADEA bans discrimination in the hiring or discharge of employees on the basis of age. 29 U.S.C. § 623(a)(1). One of its main purposes is to prevent "the setting of arbitrary age limits regardless of the potential for job
performance." 29 U.S.C. § 621(a)(2). The ADEA, however, permits employers to make employment decisions on the basis of age when it is a "bona fide occupational qualification reasonably necessary to the normal operation of the particular business." 29 U.S.C. § 623(f)(1). In addition, the ADEA states that it shall not be unlawful for an employer "to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, or insurance plan," providing such plan is "not a subterfuge to evade the purpose of this chapter." 29 U.S.C. § 623(f)(2). No such employment benefit plan, however,
shall excuse the failure to hire any individual, and no such seniority plan or employee benefit plan shall require or permit the involuntary retirement of any individual specified by section 631(a) of this title because of the age of such individual. [ Ibid. ]
As originally enacted, the ADEA protected only individuals between age forty and sixty-five and did not apply to public employees. 29 U.S.C. § 630(b)(2); § 631(a).
In 1974, Congress amended the ADEA by expanding its definition of "employer" to include "a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency * * *." 29 U.S.C. § 630(b)(2); Pub.L. 93-259, § 28(a)(1), (2), April 8, 1974, 88 Stat. 74. Four years later Congress further amended the ADEA to include individuals who were "less than 70 years of age." 29 U.S.C. § 631(a); Pub.L. 95-256, § 3(a), April 6, 1978, 92 Stat. 189, 190. Then in 1986, Congress further amended the ADEA. Pub.L. 99-592, § 2(c)(1), Oct. 31, 1986, 100 Stat. 3342, 3344. One amendment removed the age "cap" of seventy, so that with few exceptions, the Act now protects all workers over forty. 29 U.S.C. § 631(a). Of even greater relevance to the present case, the 1986 amendments established for a period of seven years an exception to the prohibition against age ...