28 CFR 42.712 - Exception; normal operation or statutory objective.
(a) A recipient may take an action that would otherwise be prohibited by § 42.710(a), if such action reasonably takes age into account as a factor necessary to the normal operation of or the achievement of any statutory objective of the program or activity.
(1) Normal operation refers to the operation of a program or activity without significant changes that would impair its ability to meet its objectives.
(2) A statutory objective of a program or activity is a purpose that is expressly stated in a federal or state statute or a local statute or ordinance adopted by an elected, general-purpose body.
(b) This exception applies when the following test is met -
(1) Age is used as a measure or approximation of one or more other characteristics;
(2) The other characteristic must be measured or approximated in order to continue the normal operation of the program or activity or to achieve any statutory objective of the program;
(3) The other characteristic can be reasonably measured or approximated by the use of age; and
(4) The other characteristic is impractical to measure directly on an individual basis.
(c) The question whether an age distinction comes within this section depends upon the particular facts, including the nature and purpose of the program or activity, the basis for and the nature and purpose of the age distinction, and the manner in which the age distinction is used.