Executive Order 11141—Declaring a Public Policy Against Discrimination on the Basis of Age

Government record

By: Lyndon B. Johnson

Date: February 12, 1964

Source: Johnson, Lyndon B. "Executive Order 11141— Declaring a Public Policy against Discrimination on the Basis of Age." Federal Register, vol. 29. Washington, D.C.: Office of the Federal Register, National Archives and Records Administration, February 12, 1964. p.

About the Author: Lyndon B. Johnson (1908–1973) was the thirty-sixth President of the United States. Vice-President under President John F. Kennedy, Johnson became President after Kennedy's assassination on November 22, 1963. Executive Orders are the form of documentation whereby the President of the United States orders specific directives as the head of the Executive Branch of the government.

INTRODUCTION

Employers in the United States regularly base their decisions as to whom to hire on a wide variety of factors. While it is difficult for the government to affect what motivates someone to hire or not to hire a specific applicant, laws have been set up establishing it as illegal to discriminate against job applicants based on certain factors. Amongst these factors is the issue of age, whereby an employer makes a decision not to hire a person solely based on the applicant's age. Assuming that it can be proven to the satisfaction of the law that an employer failed to hire a specific person only because of their age, the employer would be in violation of current anti-discrimination laws.

The laws protecting job seekers from age discrimination are primarily designed to protect people over the age of forty, who are looking for long-term employment and fear that their ages would lead employers to look elsewhere. The laws stipulate that employers are able to refuse to hire job applicants for other reasons, including if the job requires specific physical involvement that would be difficult to be successfully achieved by an older person. For these reasons, it is often very difficult to prove that an employer was in violation of the law in their hiring practices.

The primary piece of federal anti-discrimination legislation that protects the rights of people over age forty is the Age Discrimination in Employment Act (ADEA) of 1967. The law stipulates that advertisements for jobs cannot mention age restrictions and that—with few exceptions—a person cannot be forced into retirement on account of age.

As life expectancy continues to rise and medical technology improves, individuals are able to work longer. Age discrimination has also been argued to take a toll on the economy whereby workers who are able-bodied are taken out of the workforce and are unable to produce and often become dependent on social security or other welfare programs. Opponents of age discrimination also contend that older workers are often more reliable than new entrants into the workforce and that conceptions of older workers being less productive are often fed by stereotypes, which fuels further discrimination.

PRIMARY SOURCE

Executive Order 11141—Declaring a public policy against discrimination on the basis of age

WHEREAS the principle of equal employment opportunity is now an established policy of our Government and applies equally to all who wish to work and are capable of doing so; and

WHEREAS discrimination in employment because of age, except upon the basis of a bona fide occupational qualification, retirement plan, or statutory requirement, is inconsistent with that principle and with the social and economic objectives of our society; and

WHEREAS older workers are an indispensable source of productivity and experience which our Nation can ill afford to lose; and

WHEREAS President Kennedy, mindful that maximum national growth depends on the utilization of all manpower resources, issued a memorandum on March 14, 1963, 1 reaffirming the policy of the Executive Branch of the Government of hiring and promoting employees on the basis of merit alone and emphasizing the need to assure that older people are not discriminated against because of their age and receive fair and full consideration for employment and advancement in Federal employment; and

WHEREAS , to encourage and hasten the acceptance of the principle of equal employment opportunity for older persons by all sectors of the economy, private and public, the Federal Government can and should provide maximum leadership in this regard by adopting that principle as an express policy of the Federal Government not only with respect to Federal employees but also with respect to persons employed by contractors and subcontractors engaged in the performance of Federal contracts:

NOW, THEREFORE , by virtue of the authority vested in me by the Constitution and statutes of the United States and as President of the United States, I hereby declare that it is the policy of the Executive Branch of the Government that (1) contractors and subcontractors engaged in the performance of Federal contracts shall not, in connection with the employment, advancement, or discharge of employees, or in connection with the terms, conditions, or privileges of their employment, discriminate against persons because of their age except upon the basis of a bona fide occupational qualification, retirement plan, or statutory requirement, and (2) that contractors and sub-contractors, or persons acting on their behalf, shall not specify, in solicitations or advertisements for employees to work on Government contracts, a maximum age limit for such employment unless the specified maximum age limit is based upon a bona fide occupational qualification, retirement plan, or statutory requirement. The head of each department and agency shall take appropriate action to enunciate this policy, and to this end the Federal Procurement Regulations and the Armed Services Procurement Regulation shall be amended by the insertion therein of a statement giving continuous notice of the existence of the policy declared by this order.

SIGNIFICANCE

By highlighting the issue of age discrimination, this executive order passed in 1964 by President Lyndon Johnson focused attention on the importance of utilizing all segments of the population as part of the United States labor force. The document would create an important precedent that would be reaffirmed by later legislation aimed at protecting workers from being refused employment simply based on their ages. This order while specifically addressing the issue of age discrimination in the workforce of the federal government, brought the broader issue to the public fore-front. Within a short period after this order was issued, the law would be applied to prevent age discrimination in the civilian workforce as well as in other branches and levels of government.

Despite the advent of federal anti-discrimination laws, many states still permit employment "at-will" meaning that an employer can fire employees for any reason not prohibited by federal law. Since an employer can often cite other aspects of employee job performance as the impetus for firing, this makes claims for wrongful termination of employment based on age discrimination somewhat rare and difficult to prove.

While laws aimed at preventing age discrimination have succeeded in some measure to increasing the employment opportunities and employment stability for people over forty, it is often difficult to prove that an employer's decisions to refuse a certain person a job was based on age. For that reason, age discrimination suits are less common than suits claiming other forms of discrimination. Age discrimination laws also prevent employers from choosing between the younger of two elderly applicants. Thus, if one applicant is fifty-five and the other fifty, the law could protect the fifty year old if turned down for a position in a case where it could be proven that age was the deciding factor. By placing these types of laws into the labor environment, legislation designed to prevent age-discrimination has played a significant role in bettering the working conditions of older people in the United States and thus extending many careers.

As a larger number of older individuals remain in the workplace, laws preventing age discrimination become increasingly important. The U.S. Census bureau estimates that in 2015, twenty percent of the U.S. workforce will be age fifty-five or older. Over seventy percent of U.S. workers in 2006 planned to work past the traditional retirement age of sixty-five.

FURTHER RESOURCES

Web sites

American Association of Retired Persons (AARP_. "Age Discrimination at Work." <http://www.aarp.org/money/ careers/jobloss/a2004-04-28-agediscrimination.html> (accessed May 22, 2006).

Cornel Law School. "Age Discrimination in Employment." <http://www.law.cornell.edu/uscode/html/uscode29/ usc_sup_01_29_10_14.html> (accessed May 22, 2006).