§ 146.13 Rules against age discrimination. ( a ) The rules stated in this paragraph are limited by the exceptions contained in paragraphs (b) and (c) of this section. ( 1 ) *General rule.* No person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance.
( 2 ) *Specific rules.* A recipient may not, in any program or activity receiving Federal financial assistance, directly or through contracting, licensing, or other arrangements, use age distinctions or take any other actions that have the effect, on the basis of age, of: ( i ) Excluding individuals from, denying them the benefits of, or subjecting them to discrimination under, a program or activity receiving Federal financial assistance; or
( ii ) Denying or limiting individuals in their opportunity to participate in any program or activity receiving Federal financial assistance.
( 3 ) The specific forms of age discrimination listed in paragraph (a)(2) of this section do not necessarily constitute a complete list.
( b ) *Exceptions for normal operation or statutory objective of any program or activity.* A recipient is permitted to take an action otherwise prohibited by paragraph (a) of this section if the action reasonably takes into account age as a factor necessary to the normal operation or the achievement of any statutory objective of a program or activity. An action reasonably takes into account age as a factor necessary to the normal operation or the achievement of any statutory objective of a program or activity, if: ( 1 ) Age is used as a measure or approximation of one or more other characteristics; and
( 2 ) The other characteristics must be measured or approximated in order for the normal operation of the program or activity to continue, or to achieve any statutory objective of the program or activity; and
( 3 ) The other characteristics can be reasonably measured or approximated by the use of age; and
( 4 ) The other characteristics are impractical to measure directly on an individual basis.
( c ) *Exceptions for reasonable factors other than age.* A recipient is permitted to take action otherwise prohibited by paragraph (a) of this section if the action is based on a factor other than age, even though that action may have a disproportionate effect on persons of different ages. An action may be based on a factor other than age only if the factor bears a direct and substantial relationship to the normal operation of the program or activity or the achievement of a statutory objective.
( d ) *Burden of proof.* The burden of proving that an age distinction or other action falls within an exception described in paragraph (b) or (c) of this section is on the recipient of Federal financial assistance.
( e ) For the purposes of paragraphs (b) and (c), *normal operation* means the operation of a program or activity without significant changes that would impair its ability to meet its statutory objectives. *Statutory objectives* means any purpose of a program or activity expressly stated in any Federal, State, or local statute adopted by an elected, general purpose legislative body.
( f ) Notwithstanding paragraph (b) of this section, if a recipient operating a program provides special benefits to the elderly or to children, such use of age distinctions shall be presumed to be necessary to the normal operation of the program.