The Age Discrimination in Employment Act

• Pages: 221-235
• Author: George Rutherglen

221

Chapter 11

THE AGE DISCRIMINATION

IN EMPLOYMENT ACT

Unlike the statutes discussed in previous chapters, the Age

Discrimination in Employment Act (ADEA) raises issues

predominantly under the economic perspective on employment

discrimination. There is no history of discrimination against older

workers comparable to that against racial and ethnic minorities and

against women. Recent legislation, far from discriminating against

older workers, has instead conferred benefits upon them, through

such major programs as Social Security and Medicare and, with

respect to employment, through protection of pension benefits under

the Employment Retirement Income Security Act (ERISA).

1

The

ADEA itself is an instance of such specially protective legislation,

since it applies only to claims by older workers, but not to claims by

younger workers.

2

Unlike di scrimination on the basis of race,

national origin, sex, or religion, discrimination on the basis of age is

not suspect as a matter of constitutional law.

3

Nor does age discrimination have the kind of cumulative effects

that forms of discrimination have, or at least none that would

warrant a broad interpretation of the ADEA to remedy the effects of

past discrimination. Age discrimination does not apply to a discrete

and insular minority, but to individuals who may have had a fu ll

range of opportunities and advantages earlier in life. It does not limit

the employment opportunities available to a fixed class of people and

their descendants. It applies only to an ever-changing cohort of older

workers. A remedial perspective therefore confronts no persistent

effects of age discrimination that need to be remedied.

Only an economic perspective can supply a justification for the

ADEA. The most plausible basis for doing so, again, reveals a

distinction from the economic justifications offered for prohibiting

other forms of discrimination. Tastes for discrimination cannot be

used to condemn an attitude that everyone might have toward their

older relatives, and if they live long enough, that their younger

relatives might have toward them. Statistical discrimination

likewise cannot condemn as a stereotype the truism that everyone at

some age suffers from declining ability and energy. These

1

29 U.S.C. § 1001 et seq. (2018), and scattered sections of 5, 18, and 26 U.S.C.

(2018).

2

General Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581 (2004).

3

Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312–14 (1976).