Age Discrimination

• Author: Theodore Eisenberg
• Pages: 59-60

Page 59

The racial CIVIL RIGHTS revolution of the 1950s and 1960s generated interest in constitutional protection for groups other than racial and religious minorities. Enhanced constitutional scrutiny of SEX DISCRIMINATION may be a consequence of the civil rights struggle.

Discrimination on the basis of age, however, has not become constitutionally suspect. In MASSACUSETTS BOARD OF RETIREMENT V. MURGIA (1976) the Supreme Court held that some forms of age classification are not suspect and sustained against EQUAL PROTECTION attack a state statute requiring uniformed state police officers to retire at age fifty. In a PER CURIAM opinion, the Court concluded that the retirement did not affect a FUNDAMENTAL RIGHT, and characterized the affected class as uniformed police officers over age fifty. Perhaps intending to leave open heightened scrutiny of some age classifications, the Court stated that the requirement in Murgia did not discriminate against the elderly. In light of its findings with respect to the nature of the right and the relevant class, the Court held that mere rationality, rather than STRICT SCRUTINY, was the proper STANDARD OF REVIEW in determining whether the statute violated the equal protection clause. It found that the age classification was rationally related to furthering the state's interest of protecting the public by assuring physical preparedness of its uniformed state police.

In Vance v. Bradley (1979) the Court, in an opinion by Justice BYRON R. WHITE, again applied the RATIONAL BASIS test and held that Congress may require retirement at age sixty of federal employees covered by the Foreign Service retirement and disability system, even though it imposes no such limit on employees covered by the Civil Service retirement and disability system. In sustaining the mandatory retirement age, the Court emphasized Congress's special consideration of the needs of the Foreign Service. "Congress has legislated separately for the Foreign Service and has gone to great lengths to assure that those conducting our foreign relations will be sufficiently competent and reliable in all respects. If Congress attached special importance to high performance in these positions ? it was quite rational to avoid the risks connected with having older employees in the Foreign Service but to tolerate those risks in the Civil Service."

But in the legislative arena, age discrimination did feel the effects of the constitutional...