Minnesota's Age Protection Starts at 18, Not at 40 — and a Second Statute Puts Mandatory Retirement at 70

The age the statute names is the age of majority

Every widely circulated summary of American age discrimination law starts at 40. That number is federal, it is in a federal statute, and it is not Minnesota’s number.

Minn. Stat. § 363A.03, subd. 2, in full:

The prohibition against unfair employment or education practices based on age prohibits using a person’s age as a basis for a decision if the person is over the age of majority except for section 363A.13 which shall be deemed to protect any individual over the age of 25 years.

Two features are worth slowing down for.

The floor is the age of majority, not a number. Chapter 363A does not define “age of majority.” The general definition for Minnesota statutes sits in Minn. Stat. § 645.451, subd. 5: “‘Majority’ means with respect to an individual the period of time after the individual reaches the age of 18.” Subdivision 1 of the same section states the terms of its own application — the definitions govern “for the purpose of any statute or law of this state now in force, for the purposes of any statute or law hereinafter enacted unless a different meaning is specifically attached to the terms or the context clearly requires different meaning.”

The protection runs in both directions. The subdivision does not say “over the age of majority and disadvantaged relative to younger workers.” It says age may not be “a basis for a decision” about a person over the age of majority. A 24-year-old passed over because a manager wanted someone more seasoned is describing a decision made on the basis of age just as much as a 61-year-old is. The ADEA is drafted differently on this point, because § 631(a) attaches the protection to a class rather than to the characteristic.

The carve-out for § 363A.13 is not about employment at all — that section is the Act’s educational-institution provision, and the age floor there is 25.

The prohibition itself is § 363A.08, subd. 2, which makes it an unfair employment practice for an employer, because of any of fourteen listed characteristics — age is the last of them — to refuse to hire, to discharge, or to discriminate “with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment.” And § 363A.03, subd. 16, defines “employer” for the chapter as “a person who has one or more employees.” There is no small-employer exemption on the prohibition.

The federal Act, stated in its own words

Three provisions carry the weight.

The prohibition. 29 U.S.C. § 623(a): “It shall be unlawful for an employer— (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or (3) to reduce the wage rate of any employee in order to comply with this chapter.”

The class. 29 U.S.C. § 631(a): “The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age.”

The employer. 29 U.S.C. § 630(b): “a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” The definition includes a State or political subdivision and excludes the United States and wholly owned government corporations.

The federal Act also supplies its own general defenses in § 623(f): action taken “where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age”; observance of “the terms of a bona fide seniority system that is not intended to evade the purposes of this chapter”; observance of a bona fide employee benefit plan where “for each benefit or benefit package, the actual amount of payment made or cost incurred on behalf of an older worker is no less than that made or incurred on behalf of a younger worker”; and discharge or discipline “for good cause.” The employer carries the burden on the seniority-system and benefit-plan defenses: § 623(f) provides that an employer acting under them “shall have the burden of proving that such actions are lawful in any civil enforcement proceeding brought under this chapter.”

Minnesota’s second age statute, and it is not in chapter 363A

Minn. Stat. § 181.81 is a freestanding statute with its own prohibition, its own notice duties, and its own cause of action. It is easy to miss because it sits in chapter 181 rather than the civil rights chapter, and chapter 363A names it in exactly one subdivision, § 363A.20, subd. 9.

Subdivision 1(a) opens:

It is unlawful for any private sector employer to refuse to hire or employ, or to discharge, dismiss, reduce in grade or position, or demote any individual on the grounds that the individual has reached an age of less than 70, except in cases where federal statutes or rules or other state statutes, not including special laws compel or specifically authorize such action.

Then the exceptions, in the same paragraph. Compulsory retirement at 70 or older is not prohibited. Neither is compulsory retirement of an employee who “has attained at least 65 years of age and who for the two-year period immediately before retirement is employed in an executive or a high policy-making position if that employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit sharing, savings or deferred compensation plan of an employer, or any combination of these benefits which totals in the aggregate at least $27,000.” Pilots and flight crew members are outside both this section and § 363A.20, subd. 9, and are retired under Federal Aviation Administration standards.

The $27,000 figure is the state one. The federal counterpart in 29 U.S.C. § 631(c)(1) permits compulsory retirement of a bona fide executive or high policymaker at 65 where the retirement benefit “equals, in the aggregate, at least $44,000.”

Subdivision 1(b) puts two affirmative duties on the employer:

Every employer shall post in a conspicuous place a notice written or approved by the commissioner of labor and industry stating that the mandatory retirement age is age 70. Employment shall continue for as long as the employee desires or until the employer demonstrates that the employee no longer can meet the bona fide requirements, consistently applied, for the job or position or until the employee reaches the compulsory retirement age established by the employer. When an employer intends to terminate an employee who is 65 years of age or older earlier than age 70 on the ground that the employee no longer can meet the bona fide requirements for the job or position the employer shall give the employee 30 days’ notice of that intention.

Subdivision 1(c) adds a third, about benefits that shrink at an age:

If there exists a date on which the accrual of pension benefits or credits, or the contributions therefor by the employee or the employer, or the employee’s employment related health and welfare benefits or insurance coverages are diminished or eliminated by virtue of the employee attaining a certain age, the employer shall notify the employee of the changes at least 90 but not more than 120 days prior to the effective date of the change.

The same paragraph limits what that duty does: the section “in and of itself, shall not be construed to require any change in the employer contribution levels of any pension or retirement plan, or to require any employer to increase an employer’s or employee’s payments for the provision of insurance benefits contained in any employee benefit or insurance plan.” It is a notice rule, not a benefits rule.

Subdivision 1(d) borrows the civil-rights definitions: “The definitions of ‘employer’ and ‘employee’ in section 363A.03 apply to this section.” So the one-employee definition travels with it.

The remedy is its own. Subdivision 2(b):

Any party aggrieved by a violation of this section may bring suit for redress in the district court wherein the violation occurred or in the district court wherein the employer is located. If a violation is found the court in granting relief may enjoin further violations and may include in its award reinstatement or compensation for any period of unemployment resulting from the violation together with actual and reasonable attorney fees, and other costs incurred by the plaintiff.

No charge, no agency, no one-year period written into the section. Subdivision 2(a) gives the commissioner of labor and industry an advisory and conciliation role — the commissioner “shall advise any inquiring parties, employee or employer, of their rights and duties under this section” and “may attempt to conciliate any disputes” — but the enforcement sentence runs to the district court.

And the two statutes are meant to be pleaded together. Subdivision 2(c):

When an action is commenced alleging a violation of this section the plaintiff may in the same action allege a violation of chapter 363A, and seek relief under that chapter if all the procedural requirements of chapter 363A have been met. Alternatively, when a charge is filed or an action commenced alleging a violation of chapter 363A, the plaintiff may in the same action allege a violation of this section and seek relief under this section. In either case, when determining whether or not a violation of chapter 363A, has occurred the court shall incorporate the substantive requirements of this section into any duties and rights specified by chapter 363A.

The last sentence is the one that does unexpected work: § 181.81’s substantive requirements are imported into the chapter 363A analysis, not merely offered alongside it.

What chapter 363A exempts, read in full

Minn. Stat. § 363A.20 is the Act’s employment-exemption section, and four of its nine live subdivisions are about age. The section carries a note of its own from the Revisor at § 363A.08: “Any statutory exemptions to this section are covered under sections 363A.20 and 363A.26.”

Start with three that are not about age. Subdivision 1 takes § 363A.08 off entirely for employment “(1) by the individual’s parent, grandparent, spouse, child, or grandchild; or (2) in the domestic service of any person.” Subdivision 4 provides that the employment of one person in place of another, “standing by itself, shall not be evidence of an unfair discriminatory practice.” Subdivision 5 exempts “the operation of a bona fide seniority system which mandates differences in such things as wages, hiring priorities, layoff priorities, vacation credit, and job assignments based on seniority, so long as the operation of the system is not a subterfuge to evade the provisions of this chapter.”

Four more are age-specific.

Subdivision 6 — insurance and fringe benefits. Paragraph (a) permits “varying insurance benefits or other fringe benefits to members or employees of differing ages, so long as the cost to the labor organization or employer for the benefits is reasonably equivalent for all members or employees.” Equal cost, not equal benefit. Paragraph (b) is the limit on the whole age-exemption scheme: “Nothing in this chapter concerning age discrimination shall be construed to validate or permit age requirements which have a disproportionate impact on persons of any class otherwise protected by section 363A.08 or 363A.13.”

Subdivision 7 — peace officers and firefighters. Section 363A.08 does not apply to “a restriction imposed by state statute, home rule charter, ordinance, or civil service rule, and applied uniformly and without exception to all individuals, which establishes a maximum age for entry into employment as a peace officer or firefighter.” Three conditions travel with it: the restriction has to come from one of those four sources, it has to be applied uniformly and without exception, and it has to be about entry into employment.

Subdivision 9 — mandatory retirement and age-based differentials. The subdivision does four things. It permits a mandatory retirement age set “[b]y law or published retirement policy” only “if it is established consistent with section 181.81.” It permits pension plans to grant pension credit to employees over 65 “at a lesser rate than is granted to other employees,” but only where “in no event may an employee’s accumulated pension credits be reduced by continued employment” and no other state or federal law is violated. It permits “the establishment of differential privileges, benefits, services, or facilities for persons of designated ages if (1) such differential treatment is provided pursuant to statute, or (2) the designated age is greater than 59 years or less than 21 years.” And then it takes most of that back for the employment relationship: “Clause (1) does not apply to hiring, tenure, compensation, upgrading, or conditions of employment.”

Subdivision 10 — the summer youth program. Section 363A.08 “with regard to age” does not apply to “the state summer youth employment program administered by the commissioner of employment and economic development.”

Pension interference is named as age discrimination, with a note attached

Minn. Stat. § 363A.08, subd. 7:

For purposes of this section, discrimination on account of age shall include acts which interfere with an employee’s opportunity to acquire pension credits or pension benefits when the interference cannot be shown to have been based on just cause unrelated to the employee’s status with regard to pension credits or pension benefits.

Read the burden built into the clause. The interference is discrimination “when the interference cannot be shown to have been based on just cause” — the sentence is written so that an unexplained interference is inside the definition.

Immediately below the section the Office of the Revisor of Statutes prints:

NOTE: Subdivision 7 was found preempted by the federal Employment Retirement Income Security Act (ERISA) for ERISA pension plans in McLain v. Andersen Corp., 567 F.3d 956 (8th Cir. 2009).

McLain was not retrieved for this page and this page states nothing about it beyond the words of the Revisor’s note. It is reproduced because a reader working from the text of subdivision 7 alone will not see it, and because it identifies the category — a pension plan governed by ERISA — where the state provision may not be the operative one.

The Revisor prints three notes below § 363A.08 in all, and this is one of them. The second records that causes of action under subdivision 2 requiring interpretation of a federal labor agreement were found preempted by the National Labor Relations Act in Boldt v. Northern States Power Co., 195 F. Supp. 3d 1057 (D. Minn. 2016); that decision was not retrieved either, and nothing is claimed about it here beyond the words of the note. The third is the cross-reference to the exemption sections, quoted above.

One word in the first note is the Revisor’s and not ours: the note names the “Employment Retirement Income Security Act.” The statute’s own short title is the Employee Retirement Income Security Act. The blockquote above reproduces the note as the Revisor prints it.

Proving it: the federal and state standards are not the same standard

For a federal age claim the United States Supreme Court requires but-for causation. Gross v. FBL Financial Services, Inc., 557 U.S. 167, 180 (2009):

We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

Minnesota’s supreme court answered the corresponding question for chapter 363A claims twenty-one years earlier and answered it differently, refusing to import either federal “same decision” analysis and holding that “[c]ourts of this state should continue to apply the McDonnell Douglas analysis in employment cases involving claims of disparate treatment brought under the Minnesota Human Rights Act regardless of whether a claim has the label of being a ‘single-motive’ or ‘mixed-motive’ case.” Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 626–27 (Minn. 1988). Neither decision construes the other sovereign’s statute. The full comparison, and the three steps themselves, are on how a discrimination case is proven.

Sigurdson v. Carl Bolander & Sons, Co., 532 N.W.2d 225 (Minn. 1995), is worth knowing for what it shows about the evidence an age claim needs rather than for a rule. The employer there conceded that it “prefers young mechanics” but asserted “that young does not necessarily mean someone young in age, but someone relatively new in the field,” and produced evidence that it had employed several mechanics over 40 and had rehired one at 57. The supreme court affirmed summary judgment because the applicant “presents no competent evidence on the pool of applicants or on a systematic exclusion of older people to support his claim beyond asserting that Bolander stated that it prefers to hire young mechanics.” 532 N.W.2d at 229.

Signing an age claim away runs on a federal checklist

A release of a federal age claim has to clear the eight conditions in 29 U.S.C. § 626(f)(1) — including the 21-day and 45-day consideration periods and the seven-day revocation window that cannot be shortened — and the employer carries the burden of proving it did. A release of the state claim runs on Minn. Stat. § 363A.31 and its 15-day rescission right instead. Those are two different documents’ worth of requirements applied to one piece of paper, and they are on releasing an age claim and the severance release.

Currency

The Revisor currently publishes the 2025 edition of Minnesota Statutes. History lines were read on each section cited: § 363A.03 ends “2023 c 3 s 1; 2023 c 52 art 19 s 46-48; 2024 c 105 s 2-5”; § 363A.08 ends “1Sp2021 c 11 art 3 s 13; 2023 c 52 art 19 s 52-56”; § 363A.13 ends “2023 c 52 art 19 s 64-67”; § 363A.20 ends “2004 c 206 s 52; 2024 c 105 s 11”; § 181.81 shows “1978 c 649 s 2; 1979 c 40 s 3; 1986 c 444; 1987 c 282 s 1; 1987 c 284 art 2 s 3; 2003 c 46 s 1”; § 645.451 shows only “1973 c 725 s 84.”

The Revisor’s table of Minnesota Statutes affected by session laws was queried one exact section at a time. Section 363A.08 returns one action later than the posted edition — subdivision 4, amended by Laws 2026, ch. 88, art. 1, § 196 — which does not reach subdivision 2 or subdivision 7. Sections 363A.03, 363A.13, 363A.20, 181.81, and 645.451 return no 2025 or 2026 action. The most recent action on § 363A.20 is Laws 2024, ch. 105, § 11, which amended subdivision 2 (the fraternal-organization exemption) and not any of the age subdivisions; the most recent on § 181.81 is Laws 2003, ch. 46, § 1.

What this page does not do

It reads two Minnesota statutes and three federal ones and reports what they require of whom. It does not decide whether a particular decision was made on the basis of age, whether a particular job is “an executive or a high policy-making position,” or whether a particular benefit plan’s costs are “reasonably equivalent.” Those turn on a specific record.

Whether a firing was unlawful at all is on the flagship page. The one-year deadline that ends most chapter 363A claims, and the separate federal charge window, are on the calendar page and in the deadline table. How the state and federal employment statutes line up across every other subject is on Minnesota versus the federal floor.