In Robert Jankovitz v. Des Moines Independent Community School District, decided August 29, 2005, the Eighth Circuit considered whether a change in an early retirement plan violated the ADEA.

Six employees sued the school district alleging that a change in the early retirement plan violated the ADEA because it adversely affected persons over age 65.

The Eighth Circuit ruled that a 2nd Circuit case, Auerbach v. Harborfields Central School District, does not support the conclusion that the amended early retirement plan is consistent with the purposes of the ADEA. In Auerbach, eligibility for early retirement benefits was not based solely upon age, but also depended upon specific service requirements. Under the early retirement incentive plan in Auerbach,

a participating teacher must actually retire at the conclusion of the year in which he or she first becomes eligible to retire (the optimum year) in order to secure the $12,500 fixed sum payment and the accumulated sick leave payment (together, the retirement incentive benefits). Teachers older than 55, but who have not yet fulfilled the service requirements, must retire in the year they complete the service requirements, regardless of their actual age, to receive the retirement incentive benefits. Conversely, a teacher who has already completed the service requirements by the time he or she reaches age 55 must retire at the conclusion of the school year during which he or she becomes 55 in order to obtain these benefits. Otherwise, the benefits are forever lost.

In other words, while the early retirement incentive plan at issue in Auerbach did involve a "time-related window," it did not have as its upper limit a fixed age. By contrast, in Jankovitz, the upper limit of eligibility is the fixed age of 65.

The Eighth Circuit concluded that the amended early retirement plan was inconsistent with the purpose of the ADEA because the amount of available early retirement benefits drops to zero upon an employee's attainment of the age of 65. That adverse change in benefits is based solely upon age.

In other cases, early retirement benefit plans have been held unlawful because decreases in available benefits are tied to increases in age during the period of an employee's eligibility. Such cases stand for the proposition that adverse changes in employment benefits based solely upon age are inconsistent with the purposes of the ADEA.