Publications
ANALYSIS AND REVIEW: WHAT DO YOU THINK? – March 2004
Our March 2004 What Do You Think? addressed the recent Supreme Court ruling permitting employers to discriminate in favor of older workers. We asked the following question: “Should employers be permitted to discriminate against younger employees, even if they are more qualified, based solely on their age?”
Some of your comments:
“It seems to me that the anti-discrimination laws were written so that it was an individual’s ability to do the job that was the most important consideration for employers. Why should anyone’s age be a factor at all? My answer is “NO.”
“This ruling recognizes the plight of older workers. The state of the economy is such that older Americans need to work longer in order to afford retirement, and who knows what will happen with Social Security.”
“How are younger workers supposed to get experience if they can be discriminated against on their age – do they have to wait until their 40 to get a job?”
“Why can there be “REVERSE” race and gender discrimination and not reverse age discrimination? I didn’t understand your comments in the newsletter on this.”
“I’m an experienced productive older worker, and I feel that my employer has retained me all these years because of my dedication and results. It is somewhat insulting to assume that I need the Supreme Court to tell my employer that they should keep me on board because of my age. Seventy or seventeen, it should all be about my abilities.”
Analysis:
The whole concept of “reverse discrimination” is murkier than ever before. There was a time when Title VII was viewed as protecting only racial minorities and women, but years ago the Supreme Court expanded the reach of that statute to other groups. The result has been successful “reverse discrimination” claims by Caucasians and men. But, said the Supreme Court, the Age Discrimination in Employment Act (ADEA), could not be similarly broadened, because it includes specific language that limits its protections to those over forty only, as opposed to protecting against discrimination based on age considerations generally.
Does that end the reverse-discrimination-based-on-age issue? Don’t bet on it. Although the federal ADEA has now been clarified at the highest level, this issue has tremendous potential to turn into a hot bed of state legislative activity. Several states have already specifically addressed the issue by statute, while others have relied on judicial interpretation. How far the states will take age discrimination remains to be seen, but stay tuned.
Here’s what all of this proves. Once you think you know the rules of the game, they suddenly change; what seems like a logical analogy between race and age discrimination is now illogical; and if ever there were a time to review your employment practices with counsel, this is it. Let us know if we can help.
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