A major loophole in the Age Discrimination in Employment Act of 1967 (ADEA) is highlighted in the case of a Louisiana judge who last week beat two opponents in a fierce election campaign but now is technically too old to serve his term of office.
The ADEA contains an exemption for state court judges, among others, and many states have passed laws that require state judges to retire at the age of 70. Orleans Parish Criminal Court Judge Frank Marullo, 74, the longest-serving judge in Louisiana, is the latest victim of a mandatory retirement law for state judges. By contrast, federal judges have lifetime appointments during good behavior.
The voters elected Marullo to his fourth term of office. There is no evidence that Marullo is incompetent to serve on the bench or has committed wrong-doing that would bar him from serving. There is no evidence that any worker suddenly loses capacity at age 70 or 75, let alone Marullo, who appears healthy and vigorous and says he feels fine. Yet, Louisiana’s 1974 constitution requires state judges to retire by age 70 and voters last week rejected an amendment that would have overturned that mandatory retirement provision.
Marullo has argued the constitutional requirement doesn’t apply to him because he was first elected to the bench in 1974, when a prior constitutional amendment set a mandatory retirement age for judges of 75. However, Marullo will turn 75 on Dec. 31, the day before his new term of office begins. So this argument doesn’t seem to help him either.
It is now up to the Louisiana Supreme Court to determine whether Marullo will be forced to retire.
Unfortunately for Marullo, Louisiana’s high court will be guided by a standard of review set by the U.S. Supreme Court. The nation’s high court accords laws that discriminate on the basis of age “rational basis review.” This means that a law that discriminates on the basis of age would literally have to be irrational to be overturned. State supreme courts in other states have rejected claims similar to Marullo’s, finding there are “rational” reasons to require judges to retire at a certain age, such as clearing the way for younger judges.
As I noted in my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, the U.S. Supreme Court’s standard of review for age discrimination is considerably lower than that for discrimination on the basis of race or sex. It is unlikely that Louisiana’s mandatory retirement law for judges would survive if it was held to a higher standard of review.
Marullo says he will keep fighting because“every American citizen regardless of their age should not be discriminated against in any job whatsoever unless they have a disability and can’t do the job.”
Few people have sympathy for rich and powerful judges who find themselves in Marullo’s position. The American court system is dysfunctional and extremely resistant to reform and improvement. Still, there are overtones of Shakespearean tragedy when anyone finds himself or herself deprived of their job, source of income and their identity in life simply because they have reached an arbitrary age. A major reason the ADEA was originally passed in 1967 was to combat the deleterious health impacts that resulted from mandatory retirement, which was then common at age 65.
The ADEA was weak to begin, riddled with loopholes, and has been eviscerated by the U.S. Supreme Court. Despite this, there is shockingly little outcry about epidemic age discrimination in the United States, even by organizations that supposedly exist to advocate on behalf of older Americans. But age discrimination is affecting millions of Americans who are far less fortunate than Marullo; they will find themselves facing an impoverished retirement as a result. And why? Age discrimination has always b een just as harmful and irrational as race or sex discrimination.