THE AGE DISCRIMINATION IN EMPLOYMENT ACT‐REDUCTIONS IN FORCE AS AMERICA GRAYS

• Author: ROBERT G. BOEHMER
• Date: 01 September 1990
• Published date: 01 September 1990
• DOI: http://doi.org/10.1111/j.1744-1714.1990.tb00834.x

THE AGE DISCRIMINATION IN EMPLOYMENT

GRAYS

ACT-REDUCTIONS IN FORCE AS AMERICA

*ROBERT

G.

BOEHMER

INTRODUCTION

Congress has long been aware of age discrimination in American

human resource planning and of that discrimination's negative effects

on the individuals directly affected and on society.' The Age Discrim-

ination in Employment Act of

19672

(ADEA) was enacted to address

these problems by encouraging human resource planning based on

ability, rather than on the assumption that a worker's value to the

employer necessarily decreases with age?

Assistant Professor of Legal Studies, University of Georgia.

The

Aged and the Aging in

the

United States: Hearings Before the Subcomm. on

Problems

of

the Aged and Aging of

the

Senate Committee

on

Labor

and

Public

Welfare,

86th Cong.,

1st

Sess. (1959) (statement of Dr.

Eli

Ginzberg, Professor, Graduate School

of Business, Director of Conservation of Human Resources Project, Columbia Univer-

sity).

See

generally

Note,

The

Age

Discrimination

in Employmat Act of

1967.

90 HAW.

L.

REV.

380

(1976) (summarizing the events leading

up

to

the enactment of the ADEA).

Pub.

L.

No. 90-202,

81

Stat. 602 (codified

as

amended at

29

U.S.C.

5s

621-34 (1982

&

Supp.

V

1987)). In addition to the ADEA,

age

discrimination in employment by

certain federal contractors

is

prohibited by an executive order. That executive order

does not specify the protected class and contains exceptions. Exec. Order No. 11.141.

3

C.F.R. 179 (1964).

rented in

5

U.S.C.

s

3301 app.

at

517 (1982).

It

has been held

that an enforceable cause of action

is

not created by this executive order. Kodish v.

United Airlines, Inc. 463

F.

Supp. 1245. 1250-61 (D. Colo. 1979).

ufd.

628 F.2d

1301

(3d

Cir. 1980). A separate federal statute not discussed in this article, the Age

Discrimination Act of 1975,

was

enacted

to

prohibit age discrimination in certain

federally assisted programs and activities. 42 U.S.C.

s$

6101-07 (1982

&

Supp.

V

1987).

29 U.S.C.

S

62l(b) (1982) (stating, in part, that the intention

of

the ADEA is to

"promote employment

of

older persons based on their ability rather than age" and

"to

prohibit arbitrary

age

discrimination in employment").

380

I

Vol.

28

I

American

Business

Law

Journal

The importance of addressing these problems increases

as

U.S.

society ages. In

1900,

approximately

3,000,000

people in the

U.S.

had

attained age sixty-five, a number that represented about one out of

every twenty-five people in the country at that time. By

1987,

approximately thirty million people in the U.S. had attained that age,

a

number representing about one out

of

every eight

US.

residents?

In the relatively short span of time from

1970

to

1987,

the median

age in the United States rose from

27.9

to

32.8.5

One reason for the aging of the

US.

population is increased

longevity. In

1900,

the life expectancy of

a

child born in the U.S. was

47.3

years. In

1987,

that life expectancy had risen to

74.7

years.6 In

the early part of the twentieth century longevity began to increase

dramatically due to decreased infant mortality. More recently, median

age increases have resulted from decreased mortality among the

middle-aged and the elderly.7

The post-World War

I1

"baby boom"- which is commonly defined

as occurring over the period from

1946

to

1964,

during which ap-

proximately

76,000,000

children were born in the

U.S.

-

is another

major reason for the aging

of

the American population? The aging

of the "baby boomers" has been accompanied by a "birth dearth"

that began in about

1964.

This birth dearth has further accelerated

America's aging trend. The birth rate per woman in the

U.S.

was

about

3.4

to

3.6

children in

1964,

but decreased to

1.8

by

1987.9

The aging

of

the

U.S.

population does not translate directly into

an increased percentage of older workers in the American workforce

because there has been a trend toward decreasing labor force par-

ticipation by older workers. This "brain drain" has resulted in a drop

in the work force participation

rate

for

males in the fifty-five to fifty-

nine age group from ninety-two percent in

1950

to

less

than seventy-

nine percent in

1986.'"

Despite this early retirement trend, the fact that the ADEA's

protected class now includes

all

individuals over forty" will certainly

'

SENATE SPECIAL COMMITTEE ON AGING, 1OlST CONG.. 1ST SESS.,

AGING

AMERICA-

TRENDS

AND PROJECTIONS

1

(Comm.

Print

1989)

[hereinafter cited as

AGING

AMERICA].

Id.

at

2.

6

Id.

at

13.

'

Id.

THE

BUREAU

OF

NATIONAL

AFFAIRS, INC., OLDER

AMERICANS

IN THE WORKFORCE:

CHALLENGES

&

SOLUTIONS

1516

(1987)

[hereinafter cited

as

OLDER

AMERICANS

IN THE

WORKFORCE].

Id.

lo

Id.

at

6-7,18.

See

generally

Clark,

The

Future

of

Work

and

Retirement,

10

RESEARCH

ON

AGING

169

(1988).

29

U.S.C.

$

631a

(Supp.

V

1987).

1990

I

Reductions

in

Force

I301

cause the number of individuals having potential ADEA claims to

increase dramatically. By the year

2010,

approximately one-half

of

the

U.S.

workforce should be within the ADEA's protected class.12

In fact, the median age of the

U.S.

population is projected to be

forty-two by the year 2030.13

These projections concerning the portion of the

U.S.

workforce

that

will fall within the ADEA protected class may be conservative.

There

are

signs that early retirees, commonly known

as

"gold collar

workers," are already beginning to reenter the workforce because

they need,

or

simply want, to work.14 In addition, many

U.S.

employ-

ers

are actively recruiting and retraining older ~0rkers.I~ This is

occurring because employers need the experience and skills of older

workers, and also because of the declining size of the labor pool.1s

Despite

these

trends toward recruitment and retraining of older

workers, there is significant evidence

that

"gerontophobia" still per-

vades the

US.

workplace.17 Among its manifestations are incorrect

assumptions that older workers do not want to work,18 cannot adapt

to technological change,19 are less productive than their younger

counterparts,m miss work more frequently due to illness,2I and suffer

an unusual incidence of memory lapse and mental

Discrimination against older workers based on these mistaken

assumptions is

a

particularly serious matter. Although unemployment

is

a

problem for most workers,

it

is often devastating for older

workers. Older workers tend to be unemployed for a longer time

period following a layoff than younger workers, to suffer a greater

pay reduction upon work force reentry, to become more discouraged

by the job search, and to discontinue the search more easily.23

America's aging trend and its continued "gerontophobia" occur

during a period in which reductions-in-force (RIFs), commonly referred

OLDER AMERICANS

IN

THE

WORKFORCE,

supra

note

8.

at 6.

Is

AGING AMERICA,

supra

note 4, at

3.

I'

OLDER AMERICANS

IN THE

WORKFORCE,

supra

note

8,

at

7.

Stackel,

Employment Relations Progra.ms-More and

More

Companies Are Re-

cruiting and Retraining

Older,

Retired

Workers

to Meet

Their

Employment Needs,

EMPLOYMENT REL. TODAY,

Spring, 1988, at

72.

Goddard,

Work

Force

2000,

PERSONNEL

J.,

Feb.. 1989, at 67.

Kelly,

What Went

Wrong?,

PERSONNEL

J.,

Jan.,

1990,

at 43.

Stackel.

supru

note

15,

at 73 (noting a recent survey by

the

American Association

of

Retired Persons indicating that 51 percent

of

retirees over age 65

would

like to

work).

Id.

at

75.

*O

K.

DYCHTWALD, AGE WAVE

41 (1989).

Id.

at

33.

22

Id.

at

38.

2a

AGING AMERICA.

supra

note 4. at 74.