Age, Time, and Discrimination

• Publication year: 2019

Age, Time, and Discrimination

Alexander A. Boni-Saenz
Chicago-Kent College of Law

AGE, TIME, AND DISCRIMINATION

Alexander A. Boni-Saenz^*

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Table of Contents

Introduction.............................................................................847

I. Age And Discrimination.......................................................853

A. AGE.................................................................................853
B. DISCRIMINATION.............................................................861

II. Equality and Time................................................................869

A. THE TEMPORAL QUESTION..............................................870
B. LIFETIME EGALITARIANISM............................................875

1. Intent........................................................................876
2. Meaning ................................................................... 879
3. Harm........................................................................ 881

C. EQUALITY'S REMAINDERS...............................................885

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III. Non-Comparative Age Discrimination Law....................887

A. LIBERTY..........................................................................888
B. THE TEMPORAL QUESTION.............................................. 892
C. IMPLICATIONS.................................................................895

1. Discrimination Theory............................................895
2. Age-Based Law........................................................897
3. Antidiscrimination Statutes....................................902

Conclusion................................................................................904

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Introduction

Richard Posner caused a stir in 2017 when he advocated for a mandatory retirement age of 80 for federal judges.¹ His comments were particularly pointed, given the retirement rumors that swirled around Justice Anthony Kennedy (then aged 80), and Posner's simultaneous attacks on the intellectual quality of current and former members of the Supreme court.² While Posner was being characteristically provocative, his proposal would not be unique in our legal regime, which is full of age-based rules.³ The Constitution has no fewer than four age requirements for voting and running for elected office.⁴ Federal regulations use age as a factor in determining criminal sentences as well as Social Security Disability benefits.⁵ And at the state level, age is used to determine when you

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can enter into contracts,⁶ get married,⁷ or have sex.⁸ The government is permitted to draw these types of age distinctions because they are subject only to rational basis review under the Equal Protection constitutional regime.⁹

At the same time that legal rules extensively employ age, antidiscrimination statutes prohibit its use in a variety of domains. For example, federal law prohibits discrimination on the basis of age in any program receiving federal financial assistance as well as in private employment decisions.¹⁰ Many states prohibit age discrimination in housing as well.¹¹ In 2017, the California legislature tried to prevent the Internet Movie Database from publishing actors' ages so as to inhibit the use of that information in hiring decisions.¹² Age-based legal regulation even affects online dating. In early 2018, a court ruled that Tinder, the smartphone dating app, could not discriminate against people over thirty by charging them more for expanded in-app services.¹³

Despite this widespread incorporation of age into the law and the contrasting legal rejection of private age discrimination, theorists have devoted scant attention to age as compared to other socio-legal

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categories, such as race, class, or sex.¹⁴ This is unfortunate, as age is a salient social trait that is distinct from other identity categories in interesting and important ways. On the one hand, age is considered immutable because it is outside one's control, similar to race or sex.¹⁵ On the other hand, it is also clearly mutable—like religion, class, and disability—because one's age changes over time.¹⁶ Unlike these other mutable characteristics, however, age's mutability is deterministic rather than being a consequence of choice or chance. In other words, people inevitably age.¹⁷ Thus, any legal rules that incorporate age inherently implicate either our past, present, or future selves.¹⁸ These traits give age a unique temporal character, which influences determinations of when age-based distinctions might be wrongful.

Most discrimination scholars base their moral theories of discrimination—i.e. why discrimination is wrong and why the law should intervene to prevent that wrong—on the value of equality.¹⁹

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While capable of many formulations, equality is at its core a comparative value, which means that the wrong of discrimination derives from the differential treatment one person receives as compared to another similarly-situated individual.²⁰ The dominance of this comparative method in discrimination law has led some to call the field "equality law."²¹

The central claim of this Article is that equality can neither adequately describe the moral wrong of age discrimination nor justify the current landscape of statutory age discrimination law.²² Equality fails to pinpoint the moral wrong of age discrimination in a wide range of cases because the relevant comparator in the analysis is always simultaneously someone of a different age as well as a past or future self.²³ In other words, age-based rules and private age discrimination will inevitably apply to everyone if they are fortunate to live long enough. Thus, it makes little sense to complain of unequal treatment—being denied the right to vote until age eighteen or being forced to retire at age eighty—so long as everyone is treated equally over their lifetimes.²⁴ Time serves to cure these momentary instances of age discrimination, whereas it does not do so for other forms of discriminatory treatment.

Thus, we must turn to non-comparative values, such as liberty or dignity, to flesh out the theoretical foundation of age discrimination law. Non-comparative values locate the wrong of discrimination in its violation of some continuous right or interest, regardless of whether or not other people are similarly deprived.²⁵ The

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substantive content of this interest may be fleshed out in various ways, such as access to fundamental human capabilities,²⁶ the freedom to deliberate free of costs imposed from morally irrelevant traits,²⁷ or the ability to avoid opportunity "bottlenecks."²⁸ For the purposes of grounding a theory of age discrimination, it only matters that these entitlements are conceptualized non-comparatively. These types of interests must generally be respected at all points in time, avoiding the temporal problems of a comparative equality analysis.²⁹ Thus, in evaluating whether an age-based legal rule or private action wrongfully discriminates, we must focus our inquiry on the intrinsic wrongfulness of deprivation rather than the relative wrongfulness of comparison.

This Article is a scholarly contribution on three fronts. First, it illuminates the moral foundation of age discrimination law, which remains largely undertheorized in the legal and philosophical literature.³⁰ This theoretical foundation is useful for explaining the current state of Equal Protection jurisprudence with respect to age. It also serves to normatively ground age discrimination statutes that are currently on the books. Second, it intervenes in the nascent and vigorous debate among discrimination scholars on the

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theoretical foundation of discrimination law more generally.³¹ By demonstrating that some non-comparative value is necessary to identify the moral wrongfulness of at least one type of discrimination, it lends support to a more pluralist vision of discrimination law.³² Third, it adds to the new and growing literature examining the role of time and temporal analysis in legal scholarship.³³ In addition to these theoretical contributions, this intervention is also well-timed. With the aging of the population and renewed interest in intergenerational justice among the young, age-based rules and antidiscrimination statutes will inevitably come under further scrutiny.³⁴ We must understand their conceptual foundation in order to better evaluate whether they should be maintained, scaled back, or expanded going forward.

This Article proceeds in three Parts. Part I provides the theoretical background for the argument. It examines age as a socio-legal category, defines discrimination, and describes the dominant egalitarian theories of discrimination law. This sets the stage for Part II, which argues that age's temporal dimension renders egalitarian theories unable to identify the moral wrong of many forms of age discrimination. This helps to explain constitutional Equal Protection jurisprudence, which is not protective of age. However, it also highlights that we lack both a descriptive account of why statutory law operates to prohibit age discrimination and a

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normative account of why and when the law should do so. Part III fills this gap by sketching out the contours of a non-comparative approach to age discrimination law and discusses some of its notable implications for discrimination theory and the legal regulation of age.

I. Age And Discrimination

This Part provides the background for the Article's central arguments. Section A examines age, ageism, and age-based law. Section B explores the concept of discrimination and how the value of equality and its comparative method underlie many theories of discrimination law.

A. AGE

Age is a numerical measure of time since birth.³⁵ The state's extensive birth records allow for easy verification of one's birthdate and thus one's age.³⁶ While this lends age an air of objective fact, there is nothing intrinsically...