Is There Any Reason That an Employer Can Discriminate Based on Age?

Is there any reason that an employer can discriminate based on age?   The answer is “yes,” if the employer can prove that age is a bona fide occupational qualification (BFOQ).  One example of age being a BFOQ is in a theater play calling for a young person in the role.  The possibility of age as a BFOQ usually arises in jobs involving public safety or public transportation personnel.  These type jobs could be in areas such as bus drivers, fire fighters, or policemen.  The BFOQ exception is rare, usually difficult to prove, and the burden of proof of the exception is on the employer.  The employer must show that the job qualifications are reasonably necessary to the essence of the employer’s business  and that substantially all persons over the age limit cannot perform the job safely or that it is impossible or highly impractical to assess the fitness on an individualized basis.