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Age discrimination

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Description: Inequality of opportunities, services, or treatment based on age, most often affecting older persons.


Significance: The Supreme Court has examined numerous allegations of age discrimination under both the equal protection clause of the Fourteenth Amendment and the Age Discrimination in Employment Act of 1967 and the latter's amendments.


During the 1970's, a number of older government workers went to court alleging employment discrimination in violation of the equal protection clause of the Fourteenth Amendment. In reviewing these cases, the Supreme Court decided that age was not a suspect category, and therefore the Court applied minimal judicial scrutiny (also called the rational basis test), which placed a high burden of proof on the plaintiffs. Based on this test, the legal challengers had very little chance of success. In contrast, if classifications had been based on race, the Court would have applied strict scrutiny and required the classification to be narrowly tailored to achieve a compelling state interest. If the classification had been based on gender, the Court would apply intermediate scrutiny--a more difficult hurdle than for race but much less difficult than for age. The Age Discrimination in Employment Act (ADEA) of 1967 originally applied only to the private-sector. It provided legal protection for employees over forty years old from age discrimination in hiring, compensation, discharge, promotion, or conditions of employment. The statute allowed employers to set age limits when it could be shown that such limits are justified by a “bona fide occupational qualification reasonably necessary to the normal operation of the particular business” (BFOQ). The ADEA has been amended several times. In 1974, Congress extended the ADEA to most public-sector employees. An amendment of 1986 eliminated the upper age of seventy. Another amendment in 1990 included several complex provisions, including a requirement that employers pay older employees the same fringe benefits as younger workers. The ADEA is enforced primarily by the Equal Employment Opportunity Commission (EEOC). Before filing lawsuits, complainants must file claims with either the EEOC or state commissions on human rights. The EEOC attempts to resolve disputes through voluntary compliance before taking legal action. Employees are not required to wait for the EEOC to make final determinations before filing claims.


Mandatory Retirement

Plaintiffs suing for age discrimination under the Fourteenth Amendment have seldom been able to overcome the difficult hurdle of minimal scrutiny. In the first important case relating to this matter, Massachusetts Board of Retirement v. Murgia (1976), the Supreme Court reviewed a constitutional challenge to a state statute mandating the retirement of police officers at the age of fifty. Based on the premise that old age did not define “a discrete and insular minority,” the justices quickly concluded that the appropriate test was whether there was a rational basis (or justification) for the law. In view of the physical and cognitive demands of police work, they answered in the affirmative. In Vance v. Bradley (1979), the Court reviewed another challenge under the equal protection clause, this time a requirement that foreign service officers retire at the age of sixty. Again, based on the rational-basis test, the Court upheld the policy as reasonable. Plaintiffs challenging retirement policies under the ADEA had a somewhat better chance of prevailing, for here the standard was whether the policy was a bona fide occupational qualification (BFOQ). In its first ADEA case, United Airlines v. McMann (1977), the Supreme Court held that the BFOQ standard justified a policy of mandating that airline pilots retire at the age of sixty. Another influential BFOQ precedent was Western Air Lines v. Criswell (1985), when the Court unanimously overturned a policy requiring the involuntary retirement of flight engineers (who did not operate sensitive flight controls) at the age of sixty. Criswell established the assessment of a BFOQ with a two-pronged test: first, whether the ages limit is reasonable necessary to protect public safety; second, whether individual decisions about retirement age would be more appropriate than a uniform age limit for all employees. In TWA v. Thurston (1985), the Court unanimously found that the airline company violated the ADEA when it refused to give the same opportunities for fob transfer to retiring pilots as it gave to younger disabled pilots. However, the Court denied the pilots’ claim for double damages, which required evidence of a “willful violation” of the ADEA. The Court held that a violation would only be classified as “willful” when an employer demonstrates a “reckless disregard” for what the ADEA requires.


Other Employment Cases

The Supreme Court explored the issue of whether business decisions are actually “pretexts” for age discrimination in Hazen Paper Co. v. Biggins (1993). This case involved a sixty-two-year-old man who had been dismissed only a few weeks before his pension was to become vested. Assuming that the employer fired Biggins to save having to pay into the employee's pension fund, the Court found that the firing did not violate the ADEA because there was no evidence that the employer had fired him because of his age as such. The indirect, empirical correlation between age and pension status was not sufficient to prove age discrimination. The Biggins decision made it much more difficult for plaintiffs to win judgment awards under the ADEA. In Gilmer v. Interstate/Johnson Lane Corporation (1991), the Court held that an employee who signed an agreement to arbitrate employment disputes may not proceed with an ADEA lawsuit but must instead submit the dispute to an arbitrator. The issue before the Court in McKennon v. Nashville Banner (1995) was whether an employee was discharged in violation of the ADEA is barred from relief if the employer subsequently finds enough evidence of misbehavior to justify a firing. The Court ruled that such after-the-firing evidence does not block all relief under the ADEA, but that it might limit the amount of the award. In O’Connor v. Consolidated Coin Caterers (1996), the Court unanimously held that age discrimination may occur whenever a person over forty years old is fired, regardless of whether the replacement is older or younger than forty. However, the Court rejected a “reverse discrimination” claim in General Dynamics Land Systems v. Cline (2004), allowing an employer to provide better health care to older workers than younger workers. The Court found no evidence of congressional intent “to stop an employer from favoring an older employee over a younger one.” In Smith v. City of Jackson (2006), the Court first considered an ADEA case alleging a disparate impact claim, based on the theory that an employment practice unintentional discriminated against older workers. Smith and other local police officers had claimed that a salary scale had a negative effect on officers older than forty. After reviewing the case, the Court responded with two unanimous rulings. Under its first ruling the ADEA authorized suits based on a disparate impact of a policy. However, the Court also ruled that the ADEA allowed policies with discriminatory results if the policies were based on “reasonable factors” other than age, which meant that the employer did not have to justify its policy by the demanding “business necessity” standard, which would have been necessary if the disparate impact had been based on race or gender. Under the more lenient rule, not surprisingly, the police officers failed to win their case.


Federalism Issues

Advocates of states’ rights disliked the 1974 amendment that made the ADEA binding on state governments, as they believed it was inconsistent with the Tenth and Eleventh Amendments. In Equal Employment Opportunity Commission v. Wyoming (1983), however, the Court voted five to four to uphold the constitutionality of the amendment. Justice William Brennan explained that the amendment was a legitimate application of Congress's power to regulate interstate commerce. Speaking for the four dissenters, Chief Justice Warren Burger based his argument on states’ residual powers under the Tenth Amendment. By the 1990's, the justices on the Supreme Court had become more amenable to claims of states’ rights. While reviewing Missouri's requirement that state judges retire at the age of seventy in Gregory v. Ashcroft (1991), the Court held, by a 5-4 margin, that the requirement violated neither the Fourteenth Amendment nor the ADEA. In addition to emphasizing the state's Tenth Amendment right to determine the qualifications of high state officials, the Court declared that the ADEA did not apply to policy-making officials such as state judges. The case of Kimel v. Florida Board of Regents (2000) involved several older employees of a state university who had sued the board of trustees under the ADEA. In a 5-4 opinion, the Supreme Court ruled that because of the states’ immunity under the Eleventh Amendment, Congress had no constitutional power to authorize private individuals to sue a state except as a means to enforce the Fourteenth Amendment. Reasserting that age discrimination under the Fourteenth Amendment is decided by the rational basis test, Justice Sandra Day O’Connor argued that in passing the 1974 amendment, Congress had attempted to “rewrite” the Court's Fourteenth Amendment jurisprudence, which is unconstitutional. She added, however, that public employees in most states could still bring age discrimination lawsuits under state laws.



Further Reading

  • Coni, Nicholas. Aging: The Facts. New York: Oxford University Press, 1992.
  • Equal Employment Opportunity Commission. Age Discrimination. Washington, D.C.: Government Printing Office, 1998.
  • Gregory, Raymond. Age Discrimination in the American Workplace. Piscataway: Rutgers University Press, 2001.
  • Hushbeck, Judith C. Old And Obsolete: Age Discrimination and the American Worker, 1860-1920. New York: Garland Press, 1989.
  • Lindemann, Barbara, and David Kadue. Age Discrimination in Employment Law. Washington, D.C.: BNA Books, 2003.
  • MacNicol, John. Age Discrimination: An Historical and Contemporary Analysis. New York: Cambridge University Press, 2006.
  • Nichols, Barbara, and Peter Leonard, eds. Gender, Aging and the State. New York: Black Rose Books, 1994.