Federal Legality of Ageism
In terms of federal ageism laws, the Age Discrimination in Employment Act (ADEA) protects individuals who are 40 years of age or older from employment-related age discrimination, such as forced competency testing, age-based terminations, or mandatory retirement policies. The law also makes it illegal to retaliate against a person because that person complained about employment-related age discrimination, filed a discrimination charge, or participated in an employment discrimination investigation or lawsuit.
Explore This IssueJune 2020
Although courts have generally accepted mandatory retirement ages for occupations involving public safety, such as for commercial pilots, FBI agents, or even state judges, mandatory retirement or competency tests for physicians generally haven’t been reviewed or upheld. Courts would likely reject an employer’s argument that a mandatory age requirement for physician competency testing or retirement would be justified for public safety.
The Americans with Disabilities Act (ADA) prohibits adverse employment actions based on a cognitive or physical disability. The law makes it illegal to discriminate against a person with a disability in private or public employment settings and prohibits retaliation because they complained about discrimination, filed a discrimination charge, or participated in a discrimination investigation or lawsuit. Moreover, an employer must have objective evidence that an employee’s ability to perform their job duties is impaired by a condition and poses a threat to others as a result of that condition.
Although an employer may make reasonable inquiries about an employee’s medical conditions and require a medical or cognitive examination when necessary, the impetus may not be based on age alone. If a physician does, in fact, have a legitimate disability but could continue performing their professional duties, their employer is required to make reasonable accommodations to allow them to continue doing their job.
If an accommodation can’t eliminate an unreasonable risk of harm to patients, the physician cannot be guaranteed protection under the ADA, and the employer would have a bona fide occupational qualification defense to requiring testing or further measures to prevent patient harm.
The Equal Employment Opportunity Commission (EEOC) has successfully challenged mandatory retirement policies or other forms of age and disability discrimination and has continued to achieve significant settlements on behalf of employees. Recently, the EEOC filed an age and disability discrimination lawsuit against Yale New Haven Hospital based on its blanket “late career physician” policy, which requires a number of mandatory tests starting at age 70.
State Laws and Regulations
Most, if not all, states have age and disability discrimination laws that protect physicians. Some states, such as California, are stricter in their enforcement of age discrimination, while others, such as New Jersey, need to work on enhancing age discrimination laws and eliminating provisions that allow certain employer actions at specific age thresholds.
State medical licensing boards play a significant role in ensuring that physicians provide competent services by making assessments on an annual or case-by-case basis. State medical boards can incorporate age-based screening tests as part of the licensure or renewal process (similar to driver’s license renewals), which would be uniform throughout the state.
Medical boards also evaluate physicians based on reported adverse episodes of care and take action that may affect a provider’s privileges or issue decisions that may be made public following a disciplinary committee meeting.
Board certification is another way state medical boards may require competence testing, but this is usually based on formal exams, not on age alone. Actions taken or standards established by state medical boards are likely to be less scrutinized and viewed more favorably by courts, including when based—even in part—on age, because screenings and examinations can be incorporated into existing continuing education and license renewal requirements.
Peer review can be an effective tool when used with other objective methods, but it also poses a risk for abuse in the clinical setting if used to unfairly force certain physicians out for subjective reasons or personal bias, which is why it isn’t favored as the only method of evaluating physician performance.
In addition, peer review confidentiality and privilege protection varies by state. Generally, adverse events discussed during peer review proceedings and committee records are protected from discovery to facilitate open discussion between healthcare providers regarding care and treatment rendered to patients by colleagues without fear of retaliation. Members or participants in peer review sessions cannot be compelled to testify in a civil lawsuit regarding what was discussed, but the privilege isn’t absolute. Opinions and findings must originate within the peer review process to have protection. If they existed outside of peer review or are subsequently disclosed, the privilege no longer exists.