AGE DISCRIMINATION (Update)

Unique among the first generation of antidiscrimination legislation, the Age Discrimination in Employment Act (ADEA) did not provide enhanced statutory protection for what would otherwise be a constitutionally protected category. As the Supreme Court held in Massachusetts Board of Retirement v. Murgia (1976), "old age does not define a 'discrete and insular group' … in need of extra protection for the majoritarian process. Instead, it marks a stage that each of us will reach if we live out our normal life span."

The ADEA emerged from reports to Congress that older workers were being systematically excluded from the workplace based on age. As reported by the Secretary of Labor in 1967, for example, half of all private job openings were barred to applicants over fifty five, and a quarter forbade applicants over forty five. The act makes it illegal for an employer "to fail or refuse to hire or discharge any individual or otherwise discriminate against any individual … because of such individual's age." As presently formulated, the act applies to all persons over forty years of age and its prohibitions now cover hiring practices and have essentially eliminated the practice of mandatory retirement.

Although the act was aimed at entry barriers to older employees, there is relatively little evidence of any success on that front. The ADEA's prohibitions did remove the formal barriers to entry for older employees. However, significant other barriers exist in the form of higher wages associated with the rising wage scales of American employment; the difficulty of assuming pension obligations; and the problems of superannuated skills in an evolving workplace. Thus, apart from issues of discrimination, the ADEA has had difficulty with the general trend that, as older workers age, they accumulate seniority, higher income level, and greater pension rights. All of these economic factors provide motivations for cost-conscious employers to avoid the employment of older workers. The Court considered the impact of economic factors correlated to age in Hazen Paper Co. v. Biggins (1993), but ruled that there is no age discrimination when the employer is motivated by some factor other than the employee's age—regardless of any correlation. This decision has produced considerable dissension among the lower courts, which must attempt to distinguish age-based motivations from age-related ones.

Instead of the initial focus on access to employment, the act became the primary tool for improving the position of older workers already in the workplace, particularly after the emergence of powerful lobbying agents such as the American Association of Retired Persons. Virtually all ADEA litigation now concerns end-of-career issues, often-times related to the availability of employee buyouts or the impact of reductions in force.

Samuel Issacharoff

Erica Harris
(2000)

Bibliography

Issacharoff, Samuel and Harris, Erica Worth 1997 Is Age Discrimination Really Age Discrimination?: The ADEA's Unnatural Solution. New York University Law Review 72:780–840.

Posner, Richard A. 1995 Aging and Old Age. Chicago: University of Chicago Press.