It would seem to be patently illegal to accord lesser treatment to discrimination victims on the basis of age as opposed to race, sex, religion, color and national origin.
Yet, this is the law of our land.
The U.S. Supreme Court has consistently ruled that older workers are entitled to less protection from age discrimination than victims of discrimination the basis of race, sex, color, national origin and religion. The U.S. Congress 50 years ago adopted the Age Discrimination in Employment Act, which is far weaker than Title VII of the Civil Rights Act of 1963. The U.S. Office of Personnel Management has operated a discriminatory hiring program for years, depriving older workers of tens of thousands of job.
And now the EEOC, the regulatory agency charged with protecting older workers from age discrimination, has sanctioned second-class treatment of older workers in hiring by the federal government.
It’s hard to square legalized age discrimination with the Equal Protection Clause of the Fourteenth Amendment, which says no state shall deny to any person within its jurisdiction “the equal protection of the laws.” The Equal Protection Clause is extended to the federal government through the Fifth Amendment Due Process Clause. And it’s even harder to square legalized age discrimination with the Universal Declaration of Human Rights, Article 23, which declares: “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.” The U.S. was a leader in the movement to adopt the Universal Declaration of Human Rights in 1948.
The U.S. Supreme Court bases its unequal treatment of older workers on an absurd falsity.
The U.S. Supreme Court justified its unequal treatment of age discrimination in Massachusetts Board of Retirement v. Murgia, 427 US 307 (1976). The Court opined that “while the treatment of the aged in this Nation has not been wholly free of discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin, have not experienced a ‘history of purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.” This is rubbish.
Age is a feature that none of us has chosen, just as our ‘race’ or – in nearly all cases – our gender.
As with other types of discrimination, the old have suffered massive historical injustice. The ADEA was passed in 1967 because employers routinely excluded older workers from entire sectors of the workforce through arbitrary hiring rules and then excluded them from the workforce altogether by forced retirement. At the advent of the Industrial Revolution, older workers were dumped into poor houses when they could not keep up with young workers fresh off the farm. Older workers were the biggest victims of the Great Recession of 2008, when they were subject to mass layoffs and disproportionate long-term unemployment due to hiring discrimination. Many were forced to retire with insufficient funds to avoid poverty in the coming years.
Ageist stereotypes are just as damaging as stereotypes on the basis of race, sex or religion and more than twice as prevalent.
Finally, age discrimination may be even more harmful because many victims do not have sufficient time in the workforce to recover from job loss or hiring discrimination. Moreover, age discrimination does not affect all individuals equally. Research shows that women suffer age discrimination a decade before men do and are much more severely affected by age discrimination in hiring. Age discrimination is a contributing factor to higher rates of poverty for older women.
There is no legal or moral justification for preventing older workers from working if they are capable of doing the job. Any employee who cannot do the job can be fired for cause. Moreover, society benefits when workers remain in the workforce until they can fund their own retirements.
The EEOC has all but forfeited its moral authority to go after private employers who practice age discrimination in hiring.
If any agency should be aware of the history and impact of age discrimination, one would expect it to be the EEOC. Not only is the EEOC charged with enforcing the ADEA but all four of the current members of the EEOC are women who should know that age discrimination is an important women’s issue. Not just white women but also women who are lesbians, blacks and Hispanic. Yet, the EEOC has ignored the problem of age discrimination for years and even operates a hiring program that blatantly discriminates on the basis of age.
On Monday, I asked the EEOC press office the following question: “What intellectual and legal basis does the EEOC have for permitting the unequal treatment of older workers (re. condoning the practice of using “cultural fit” as a criteria in age discrimination cases but not with respect to discrimination on the basis of race, sex, religion, color or national origin)? I will certainly relay any response that is forthcoming (but don’t hold your breath).