Does Virginia commit age discrimination when SPORS retirees keep getting a retirement supplement longer than VaLORS retirees?

Plain-English summary

Virginia runs two separate retirement systems for its law-enforcement officers: the State Police Officers' Retirement System (SPORS, §§ 51.1-200 to 51.1-210) and the Virginia Law Officers Retirement System (VaLORS, §§ 51.1-211 to 51.1-221), which covers other state law-enforcement personnel. Retirees in both systems get an annual cash supplement on top of the base benefit. The supplement amount is the same in dollars. The difference is when the supplement stops.

A VaLORS retiree gets the supplement from retirement "until his sixty-fifth birthday" (§ 51.1-217(B)). A SPORS retiree gets the supplement from retirement "until his retirement age, as such term is defined under the Social Security Act" (§ 51.1-206(B)). Social Security's "retirement age" for employees reaching early retirement age between 2005 and 2017 is 66 or older. So SPORS retirees keep the supplement a year (or more) longer than VaLORS retirees. Senator Quayle asked whether that gap was age discrimination.

AG Cuccinelli concluded it was not. The federal Age Discrimination in Employment Act applies to states as employers, but Congress carved out a specific exemption for "an employee pension benefit plan" that "provides for the attainment of a minimum age as a condition of eligibility for normal or early retirement benefits" (29 U.S.C. § 623(l)(1)(A)(i)). The differing SPORS and VaLORS cutoff ages are exactly the kind of pension-plan eligibility rule Congress chose to leave alone. The opinion did not analyze parallel state-law theories, only ADEA.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why do the two retirement systems exist?
A: SPORS covers state police officers and was the original Virginia law-enforcement retirement plan. VaLORS, established later, covers other state law-enforcement personnel (correctional officers, certain investigators, parole officers, and similar positions).

Q: Did the AG say the two plans must remain different?
A: No. The opinion answered only the specific question whether the difference is unlawful age discrimination. The General Assembly remains free to align the cutoff ages by statutory amendment.

Q: Could a Virginia equivalent of the ADEA reach this differently?
A: That theory was not addressed. The opinion analyzed federal ADEA only. The Virginia Human Rights Act and other state-law theories would need separate analysis.

Q: Why did Congress exempt minimum-age pension rules from ADEA?
A: Pension plan design depends on age and service in fundamental ways (vesting schedules, actuarial valuations, early-retirement reductions). Congress decided to leave those age-based features outside ADEA's coverage rather than have every actuarial assumption second-guessed in federal court.

Background and statutory framework

The retirement supplement is governed by § 51.1-217(B) for VaLORS and § 51.1-206(B) for SPORS, and both peg the supplement amount to the same dollar figure (initially $9,264, adjusted biennially). The federal Social Security Act in 42 U.S.C. § 416(l) supplies several "retirement age" definitions, including the "early retirement age" rule in § 416(l)(2) and the "retirement age" rule for employees who attain early retirement age between 2005 and 2017 (§ 416(l)(1)(C)), which is 66.

The ADEA, codified at 29 U.S.C. §§ 621 to 634, makes states subject to age-discrimination claims (§§ 621(b), 623(a)). The pension-plan minimum-age carve-out in § 623(l)(1)(A)(i) is the operative provision.

Citations

• Va. Code Ann. § 51.1-206(B) (SPORS supplement, ending at SSA retirement age)
• Va. Code Ann. § 51.1-217(B) (VaLORS supplement, ending at 65)
• 29 U.S.C. § 623(l)(1)(A)(i) (ADEA pension-plan exemption)
• 42 U.S.C. § 416(l) (Social Security Act retirement-age definitions)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-013-Quayle.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II

900 East Main Street
Richmond, Virginia 23219
804-786-2071

Attorney General

March 17, 2010

The Honorable Frederick M. Quayle
Member, Senate of Virginia
P.O. Box 368
Suffolk, Virginia 23439

Dear Senator Quayle:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether the distinction in eligibility under the Virginia Law Officers Retirement System and the State Police Officers' Retirement System for an annual allowance constitutes age discrimination.

Response

It is my opinion that the distinction in age for eligibility for an annual allowance under the Virginia Law Officers Retirement System and the State Police Officers' Retirement System does not constitute impermissible age discrimination.

Background

You note that the General Assembly has established two separate retirement systems for its law enforcement officers: (1) the State Police Officers' Retirement System ("SPORS")[1] and the Virginia Law Officers Retirement System ("VaLORS").[2] You relate that retirees under VaLORS and SPORS receive an annual allowance, which is the same for both systems. You note, however, that there are differences in the ages for eligibility for these annual supplements. Thus, you state that SPORS retirees can receive more payments than VaLORS retirees because the retirement age under the Social Security Act occurs later than age sixty-five. Therefore, you inquire whether the different age requirements for eligibility results in age-related discrimination.

Applicable Law and Discussion

Retirees under VaLORS receive an annual allowance, initially in the amount of $9,264, which is thereafter adjusted biennially by the Board of Trustees of the Virginia Retirement System.[3] Retirees under SPORS receive the same amount.[4] A VaLORS retiree, however, receives this annual supplement "from the date of his retirement until his sixty-fifth birthday."[5] In contrast, a SPORS retiree receives the annual supplement "from the date of his retirement until his retirement age, as such term is defined under the Social Security Act."[6] The Social Security Act provides several definitions of "retirement age."[7] For example, for employees "who attain[] early retirement age[8] after December 31, 2004, and before January 1, 2017," the "retirement age" for purposes of the Social Security Act is "66 years of age" or older.[9]

The federal Age Discrimination in Employment Act of 1967 ("ADEA")[10] prohibits an employer, including states, from discriminating on the basis of age.[11] The Congress of the United States specifically has exempted "an employee pension benefit plan" that "provides for the attainment of a minimum age as a condition of eligibility for normal or early retirement benefits" from the scope of ADEA.[12] Therefore, under the plain language of ADEA, there is no viable claim for age discrimination based on the differences in the annual supplements under SPORS and VaLORS.

Conclusion

Accordingly, it is my opinion that the distinction in age for eligibility for an annual allowance under the Virginia Law Officers Retirement System and the State Police Officers' Retirement System does not constitute impermissible age discrimination.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

1. See VA. CODE ANN. tit. 51.1, ch. 2, §§ 51.1-200 to 51.1-210 (2009).
2. See tit. 51.1, ch. 2.1, §§ 51.1-211 to 51.1-221 (2009).
3. See § 51.1-217(B).
4. See § 51.1-206(B).
5. Section 51.1-217(B).
6. Section 51.1-206(B).
7. See 42 U.S.C.S. § 416(l) (LexisNexis 1999) (defining "retirement age").
8. See id. § 416(l)(2) (defining "early retirement age").
9. Id. § 416(l)(1)(C).
10. See 29 U.S.C.S. §§ 621 to 634 (LexisNexis 2002 & Supp. 2009).
11. See id. §§ 621(b), 623(a) (2002).
12. See id. § 623(l)(1)(A)(i) (Supp. 2009).