Ageism, Later Careers and the Law: An Examination of the Theoretical and Practical Problems of Enforcing Anti-Discrimination Statutes
Orrin R. Onken
Portland State University
As the new millenium begins, one of the disturbing problems relating to aging has been the trend in which people are staying healthy longer yet leaving the workplace earlier. Retirement, whether experienced as a well deserved reward for hard work or an involuntary expulsion from ones job due to economic forces, appears as an option earlier and earlier in peoples' working lives. For many, however, leaving a career in one's fifties or early sixties will not mean an exit from the labor force. Instead it will be the start of another phase in ones working life.
Workers seeking new economic endeavors in later life may be prompted by very different motives. One group of such seekers includes those who have voluntarily left a successful albeit unrewarding work life and wish to pursue a less remunerative yet more emotionally satisfying endeavor in their later working years. The second type are those who have been displaced from their jobs without the means for traditional retirement. Both types of job seekers, however, face significant hurdles to being accepted into new jobs and new fields. Some of the hurdles are insurmountable. Some of the hurdles are illegal, and some of the hurdles are both.
Understanding the difficulties that face older job seekers as well as those who prefer not to hire them requires a look at how we got to this position of longer lives and earlier retirements, how social policy has changed since retirement first became associated with chronological age, and how the laws have attempted to address competing policies in the workplace. As the baby boom generation -- a generation that by most economic indicators is financially poorer than the one that preceded it -- oozes toward traditional retirement age, good health, the "busy ethic," and a lack of retirement income may push more and more young-old into finding new fields for economic endeavor. If it is jobs they seek, or entry into new professions, they are likely to encounter a kind of discrimination that has its roots in policy decisions of the past.
The Social and Theoretical Context of Ageism in the Workplace
Ageism in the work place is a form of discrimination that has often been associated with other kinds of prohibited prejudice -- particularly discrimination on the basis of race, color or gender. Despite this association in the press and elsewhere ethicists and social policy designers have always recognized that ageism cannot be condemned using the same theoretical tools used against other discriminatory practices. While discrimination based upon race or gender openly results in the unequal distribution of social benefits, ageism is normally condemned because it results in a false derogatory judgment about an individual. Understanding the roots and results of this kind of prejudice requires a careful eye for the unintended results of past social policies and the way in which socially constructed categories can harm those they were intended to help.
The predominant argument against discrimination is that the benefits and burdens of a society are distributed justly when they are distributed equally. Discrimination that tends to disturb the equality of distribution is therefore unjust. The problem in the case of ageism is that everyone grows old. Thus, across a lifetime every person might receive benefits and burdens equally, but distributed according to his or her age. Distribution according to age may be distribution according to irrelevant or arbitrary criteria, but it is nevertheless even for all members of society. Thus when viewed over a lifetime, discrimination on the basis of age might enhance socio-economic stability as well as intergenerational equality and therefore appear to be in everyone's interest.
Age discrimination is unjust, not because is unfairly distributes social benefit and burden, but because it institutionalizes a false derogatory judgment about a person. The fact that everyone is treated similarly does not change the injustice of being subject to a false judgment. Thus, if all the innocent accused are punished similarly, the result is still an injustice. In a sense, ageism is not about the inappropriate treatment of people in comparison to others, but inappropriate treatment of people in comparison to their former selves. It is the systematic treatment of people as inferior when they are not in fact inferior (Cupit, 1998).
Ageism in American society has probably always been with us to some degree or another. However, this century seems to have seen ageism take a greater hold in our social and legal institutions. In the popular press ageist attitudes have been attributed to industrialization, smaller families, urbanization and the transition for an industrial to an information society. Some of the sources of ageism, however, lie in the very social policies and legislation that was initially designed to help the elderly.
In looking for the roots of ageism, passage of the Social Security Act in 1935 is as good a place to start as any. Amended many times Social Security has set the tone for many current attitudes toward aging and employment. While providing the elderly with an economic safety net for retirement the Act also set in motion certain social forces that today burden attempts by elder workers to find new careers. The five inadvertent children of Social Security are,
To a certain extent these unwanted children are the natural offspring of the theories that combine generally under the rubric of the 'liberal-pluralist' tradition. This tradition identifies a constellation of social theories found in one form or another in all industrialized Western nations. The tradition takes different identities depending upon the discipline in which it arises. Thus in sociology it is functionalism -- the view that technical and industrial change have disrupted older patterns of handling employment and old age so that public policy responses become necessary. In economics the liberal-pluralist position appears in neoclassical theory where it suggests that exit from the workplace of the elderly is a natural and inevitable result of a desirable course of industrialization and economic development. In political science it takes the form of democratic pluralism -- the idea that policy comes from successful political struggle and policies regarding the elderly are due to the emergence of the elderly as a political force. (Walker, 1999)
In the 1960s, however, the United States saw several significant shifts in social policy, one of which was aimed directly at the prejudices that had been quietly enforced by the Social Security Act. Amidst a flurry of social legislation Congress passed the Age Discrimination in Employment Act. (ADEA) Passed three years after Title VII to the Civil Rights Act of 1964, the ADEA intended to (1) promote the employment of older workers based upon ability rather than age, (2) prohibit arbitrary age discrimination in the workplace, and (3) help employers find ways of meeting problems arising from the impact of age on employment (Bessey & Ananda, 1991). Representative Pucinski (Congressional Record 1964) made a case for the Act:
It is not the young people; it is not the highly skilled people of America who are having difficulty finding jobs. It is that unemployed American worker who is in his forties or fifties, regardless of his race or religion, who has been displaced by automation and for no other reason than because of a growing practice of refusing to hire older workers of this country, is being denied a job. (p. 2598)
The arguments that led to the passage of the ADEA present a very different view of older Americans than those that led to the passage of the Social Security Act. The 1935 Act addressed an older population that needed an economic safety net to protect it from poverty as senescence produced a natural withdrawal from economic life. The 1967 Act addressed an older population that was being unfairly denied the opportunity to participate in economic life. These differing views jostle for the hearts and minds of policy makers even today.
The difficulties and contradictions policy makers experienced in addressing aging appeared as the emerging discipline of gerontology struggled with finding a theoretical foundation (Hendricks & Achenbaum, 1999). Thus, the change in attitude that occurred between the 1935 congress that passed Social Security and the 1967 Congress that passed the ADEA can be likened to the theoretical shift from disengagement theory to activity theory among the pioneers in gerontology who did the Kansas City studies (Marshall, 1999). Both disengagement and activity theory, however, are now in disrepute and post-modern theoretical work challenges many of our assumptions about the social sciences. Similarly, the ADEA looks less enlightened at the turn of the millenium, largely because in practice it has only tended to help a narrow class of white male middle management workers who already have jobs. Understanding how that came about requires a brief look at the details of how the ADEA was enacted, amended and enforced.
The ADEA in Historical Context
The ADEA has been a troubled enactment since the beginning. Following on the coat tails of Title VII, it never really found a place in a unified social policy, and thus has been battered by changing administrative homes, complex proof requirements, and daunting enforcement schemes. In fact, the large institutional environment in which the act is administered and is enforced may well have provided more benefits over the years for public employees, investigators and litigators than it has for working class elderly.
Initially, age was included along with race, religion and gender in Title VII of the Civil Rights Act of 1964. Age, however, was removed from the Act to prevent possible delay in passage and because it was thought that including age in the Act might overburden the Equal Employment Opportunity Commission (EEOC). To make up for this removal, the Secretary of Labor was instructed to study age discrimination and report back to congress. The Secretary reported back a widespread use of age cutoffs in hiring and termination (Bessey & Amanda, 1991; Achenbaum, 1991). For example, more than 60% of non-skilled industrial jobs had limits set in the 35-49 range (Wirtz, 1965). Congress acted, and in 1967 the ADEA became law.
The drafters of the ADEA understood that age discrimination was qualitatively different than discrimination based upon race, color, gender or religion. (Bessey & Amanda 1991). Recently, Justice O'Connor, writing for the court in Kimel v. Florida Board of Regents (2000) explained once again this difference:
We have considered claims of unconstitutional age discrimination under the Equal Protection Clause three times. See Gregory v. Ashcroft, 501 U.S. 452, 115 L. Ed. 2d 410, 111 S. Ct. 2395 (1991); Vance v. Bradley, 440 U.S. 93, 59 L. Ed. 2d 171, 99 S. Ct. 939 (1979); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (1976) (per curiam). In all three cases, we held that the age classifications at issue did not violate the Equal Protection Clause. See Gregory, supra, at 473; Bradley, 440 U.S. at 102-103, n. 20, 108-112; Murgia, supra, at 317. Age classifications, unlike governmental conduct based on race or gender, cannot be characterized as "so seldom relevant to the achievement of any legitimate state [*39] interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985). Older persons, again, unlike those who suffer discrimination on the basis of race or gender, have not been subjected to a "'history of purposeful unequal treatment.'" Murgia, supra, at 313 (quoting San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973)). Old age also does not define a discrete and insular minority because all persons, if they live out their normal life spans, will experience it. 427 U.S. at 313-314. Accordingly, as we recognized in Murgia, Bradley, and Gregory, age is not a suspect classification under the Equal Protection Clause. See, e.g., Gregory, 501 U.S. at 470; Bradley, 440 U.S. at 97; Murgia, 427 U.S. at 313-314.
In Justice O'Connor's opinion the ADEA reflects the social and ethical considerations -- discussed above -- that differentiate ageism from other kinds of discrimination and implicitly ratifies the idea that ageism is a lesser evil than than discrimination according to race or gender. A lesser evil will be addressed in law with lesser remedies.
The statute that emerged from the 1967 Congress was a true hybrid. The antidiscrimination practices remedied by the ADEA resemble those in Title VII. The enforcement provisions, however, were taken from the 1938 Fair Labor Standards Act (FSLA). This hybridization has caused courts significant hardship in that it makes congressional intent nearly impossible to discern in areas where Title VII and the FLSA differ. Enforcement of the ADEA was also distributed. Administrative enforcement was initially made the responsibility of the Wage and Hour Division of the Department of Labor. In 1974, however, when the ADEA was amended to include federal employees, the U.S. Civil Service Commission assumed responsibility for cases involving federal employees. And in 1978, as part of a government reorganization, all functions pertaining to the ADEA were transferred to the EEOC. Like Social Security and most other enactments in the "aging enterprise" the bureaucratic apparatus surrounding the ADEA has become bewilderingly complex (Achenbaum, 1991).
In addition to being a hybrid statute and having had its enforcement mechanisms moved about in the federal bureaucracy, the ADEA has also been amended several times. In 1967 the Act applied only to workers between the ages of 40 and 65. Thus in its beginning it actually enforced the idea that those over sixty-five had limited economic usefulness. This upper limit of coverage was raised to 70 in 1978 and eliminated for most professions in 1986. The raising and eventual elimination of an upper age limit for coverage under the Act corresponded loosely to changing social attitudes toward the elderly, the rise of economic concerns about increasing numbers of retirees, and the development of more sophisticated theoretical approaches in gerontological research.
The Prima Facie Case for Age Discrimination
One trial lawyer recently observed that direct evidence of age discrimination in the modern workplace is as rare as typewriters (Osborne, 1999). Popular magazines regularly comment upon both the persistence of age discrimination (Garner, 1999) and the difficulty of proving it (Fortune, 1999). Nevertheless, as the baby-boomers age human resource professionals expect the number of complaints and law suits alleging age discrimination to rise (Flynn, 1997). If that is the case the aggrieved boomers will need careful and courageous lawyers. From initial filing to paying taxes on a collected award, ADEA cases are fraught with difficulty.
Whether initiated by a private party or the EEOC, a case under the ADEA will be either a disparate-treatment case or an disparate-impact case, both of which are concepts originating under Title VII. Disparate treatment occurs when an employer treats some people less favorably than others because of their protected characteristics. Proof of discriminatory motive is critical. Disparate-impact claims involve employment practices that are facially neutral but have effects that fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive is not required under a disparate-impact theory. In the 1993 case of Hazen v. Biggins, however, the Supreme Court noted that it had never explicitly approved disparate-impact cases under the ADEA, and since then the theory has been under a cloud of doubt (Henkle, 1997). Until Congress or the Supreme Court clears up the issue, most cases will have to rely upon disparate treatment and direct proof of discriminatory intent.
The classic roadmap for a ADEA disparate-treatment case actually comes from the Title VII case, McDonnell Douglas v. Green (1973) in which the court laid out the elements that allow an inference of discrimination from objective facts. In the ADEA version a plaintiff must prove that he or she:
The fine points and many traps for the unwary in this scheme are beyond the scope of this paper. However, for the average case, if the plaintiff makes out the four elements of his or her case, the burden then shifts to the employer to offer a nondiscriminatory reason for the adverse employment decision. If the employer does provide a nondiscriminatory reason, accompanied by some credible evidence, the burden of proof then returns to the plaintiff to show that the proffered reason is a cover-up for discrimination. The crux of the case for the plaintiff is proving a subjective intent to discriminate from the existence of certain objective facts. Thus, age, rather than employment performance, must be proven to have been if not the sole, at least a determining factor in the adverse employment decision.
The reasons that ADEA cases are often so hard to win is that the evidence necessary to win them is usually in the sole control of the employer. Human resource managers are far too sophisticated to leave a paper record of overt age discrimination and even department managers are savvy enough these days to avoid openly ageist statements in the context of employment matters. Often the only aggrieved employees who also have had access to evidence of overt discrimination are those in middle management who have worked closely with the accused decision makers. Thus, not surprisingly, white, male, managerial or professional employees bring a significant majority of ADEA cases (Bessey & Amanda, 1991), and termination cases vastly outnumber refusal to hire cases (Flynn, 1997). Although the legislative history of the ADEA suggests it was intended to help the blue-collar and hourly wage worker, things have not worked out that way. The act primarily helps employed middle managers, sales people, and professionals. Hourly workers see less protection, and those seeking protection from discrimination in hiring see little at all.
State Anti-Discrimination Law
While federal anti-discrimination law tends to get the bulk of the attention, state and local law often offer a wronged plaintiff easier proof requirements, fewer procedural roadblocks, and better damage provisions. Nearly all states now have statutes that contain provisions similar to those contained in the ADEA. Local counties and even cities may also have anti-discrimination laws that cover elderly workers. So while the chances of effective redress are often small in age discrimination cases, the avenues down which one can pursue remedies are numerous.
In Oregon, the State has opposed age discrimination in employment since well before the ADEA. Since 1959, ORS 659.015 has provided as follows:
It is declared to be the public policy of Oregon that available manpower should be utilized to the fullest extent possible. To this end the abilities of an individual, and not any arbitrary standards which discriminate against an individual solely because of age, should be the measure of the individual's fitness and qualification for employment. [1959 c.547 s.2; 1959 c.689 s.2]
Unlike its federal counterpart which begins coverage at the age of forty, ORS 659.030, which enumerates unlawful employment practices in Oregon, prohibits age discrimination beginning at age eighteen. The enforcing provisions not only provide for administrative remedies through the Oregon Bureau of Labor and Industries, but provide that private plaintiffs can recover the full gamut of damages. Thus, a discriminating employer brought to court pursuant to ORS 659.121 faces not only liability for lost wages, but potential liability for general emotional distress damages, front-end lost pay, punitive damages and attorney fees.
Fortune Magazine cynically sums up the situation.
Under the federal statute, recovery is limited to back pay (an employee's salary and the value of his benefits since he was fired), possibly front pay (if it's clear the employee will have a hard time finding another job), and attorney's fees. If the jury decides the discrimination was "willful," which juries often do, back-pay damages are doubled. The big money begins with state statutes, some of which permit punitive damages as well as damages for emotional distress. In California, for example, $1.5 million in damages is not considered unusual for someone who, when fired, was making $100,000. That is to say, the chance of getting an age-discrimination case to court is slim, but if a case makes it through, damages can be huge.
Oregon, in cases such as Tadsen v. Praegitzer Industries, has made clear that the full range of remedies will be available in a state court case.
All the news from the states, however, is not good for plaintiffs. Recently the California case of Marks v. Loral (1997) made national news by holding that an employer may prefer workers with lower salaries to workers with higher ones, even if the preference falls disproportionately on older, generally higher paid workers. In doing so, the case further undermines the theoretical foundation of disparate-impact cases that were questioned by the Supreme Court in Hazen v. Biggins. The Marks court concisely defined the theoretical split that divides those proponents and opponents of disparate impact.
The core of the split may be traced to two fundamentally differing views about the goal of the age discrimination statutes. If the goal of the age discrimination statutes is to preclude decisions based on generalities about older workers which may have no basis as to individuals, then they certainly do not extend to decisions based on relative compensation rates between individual workers. In this view, age discrimination statutes were enacted to prevent employers from assuming that just because an individual attained a certain age, he or she no longer could do the job, or do it as well.
The other view is that age discrimination statutes were enacted to protect older workers because of their status as older workers, since older workers, generally speaking, face unique obstacles late in their careers. Age discrimination law is thus seen as a kind of protective legislation designed to improve the lot of a people who are vulnerable as a class. If this view is correct, then holding that decisions based solely on salary may contravene laws precluding discrimination based on age makes sense.
The Marks court, after reviewing the federal cases and the substantial number of law review comments on the issue, concluded that the anti-discrimination laws addressing age issues were not designed to improve the lot of a class of people, but rather to prevent general assumptions about age and competence from being applied to a particular individual. Disparate impact alone, would not create a cause of action under state versions of the ADEA.
Each state, through its courts and legislature, will need to work out the relationship of its anti-discrimination statutes to disparate-impact analysis and business necessity. It appears, however, that disparate impact is currently in some disfavor in all courts. Thus, such cases seem appropriate only for those who have a sound theoretical understanding of the issues and access to sophisticated statistical analysis.
Local Ordinances Prohibiting Age Discrimination
One often overlooked avenue of redress for age discrimination lies in local city and county ordinances. These kinds of ordinances can vary widely and are often difficult to find. Nevertheless, they often provide a fairly effective and inexpensive procedure for redress that encompasses the norms of the local community in which the complainant resides.
For example, employees of Multnomah County or those applying for such employment can contest an adverse employment decision pursuant to Multnomah County Code sec. 9.009 which prohibits discrimination on the basis of age and a variety of other individual characteristics. Complaints are handled through the independent Merit System Civil Service Council. The Councils remedies are limited, but its procedures are simple enough so that many people successfully argue their cases without an attorney.
The City of Portland also prohibits discrimination, not only within its own divisions, but also on the part of any employer operating in the city. The enforcement provision of the anti-discrimination statute, Portland City Code sec. 23.01.0809(E), provides as follows:
Any person claiming to be aggrieved by an unlawful discriminatory act under the provisions of this code shall have a cause of action in any court of competent jurisdiction for damages and such other remedies as may be appropriate. Election of remedies and other procedural issues relating to the interplay between administrative proceedings and private rights of action shall be handled as provided for in ORS 659.095 and 659.121. The court may grant such relief as it deems appropriate, including, but not limited to, such relief as is provided in ORS 659.121.
This seems to expand the authority of the Court to devise remedies that might not be included in an action under state law. Being that the Oregon Supreme Court recently in Simms v. City of Portland (2000) upheld the right of municipalities to enact anti-discrimination legislation that will be enforceable in state courts, plaintiffs may find the legislative output of local government more wide ranging and useful than its state and federal counterparts.
The EEOC and Its State Counterparts.
So far discussion has centered upon the legislation, cases and judicial remedies. Administrative remedies are an integral part of the age discrimination law at both the state and federal level. In fact, most age discrimination claim begin and end in the world of administrative procedures. At the Federal level, the Equal Employment Opportunity Commission handles administrative enforcement of the ADEA. The administrative counterpart of the EEOC in Oregon is the Bureau of Labor and Industries (BOLI). These two agencies are linked by their administrative rules and cooperate to avoid duplication of efforts. Both agencies are charged with enforcing not just age claims, but a variety of civil rights statutes and are thus hampered by both large caseloads and bureaucratic inefficiency. To their credit, however, they can sometimes provide remedies in cases that are either too small or too large for the individual litigant with a private attorney.
At the federal level, filing of a complaint before the EEOC or its state counterpart is a prerequisite to bringing an action under the ADEA (29 USC sec. 659.121;29 USC sec. 659.626(d); 29 USC sec. 659.633(b)), and the date of filing the administrative complaint will determine the time period in which it is permissible to file an action in federal court (EEOC, 1999). Under Oregon law filing of a complaint with BOLI is not a prerequisite to a state case, but bringing a court action can operate as a bar to administrative remedies (ORS 659.095; ORS 659.121). The two agencies cooperate to somewhat simplify these confusing rules. According to the EEOC, BOLI is a "Fair Employment Practices Agency" (FEPA) capable of handling discriminations complaints according to the provisions of the ADEA and other civil rights statutes. Thus, pursuant to an agreement existing in the administrative rules that govern both agencies -- 29 CFR 1626.9 and OAR 839-003-0015 -- a complaint filed with one agency that meets the requirements of the other will be co-filed. This means that the EEOC will file and Oregon civil rights complaint with BOLI, and BOLI will file an Oregon complaint that meets federal guidelines with the EEOC. In most cases, the agency receiving the initial complaint will follow up using its own laws and procedures, but that need not be the case. The process also permits a person who has filed with either agency to subsequently bring a federal court action if is otherwise proper. (Appendix A, flow chart of EEOC and FEPA procedure).
Both the EEOC and BOLI make admirable efforts to make their resources available to the public. In 1999, the EEOC resolved 15,448 age discrimination cases. Age discrimination cases, however, comprised less than fifteen percent of the total charges filed with the EEOC in 1999 and eight-two percent of them were closed for either administrative reasons or due to a determination that the complaints lacked merit (EEOC, 2000). The administrative actions resulted in 38.6 million in benefits to aggrieved parties. BOLI handles about 2500 discrimination cases a year, only a hand full of which deal with age discrimination (Oregon BOLI, 2000). The amount of benefits recovered by BOLI is not available, however, at least one recent case, Alpine Meadows, indicates that BOLI will, when faced with the proverbial smoking gun, seek a full range of compensatory damages in age cases even for lower paid hourly workers.
Administrative remedies through the EEOC and its state counterparts have advantages for complainants at both ends of the age discrimination spectrum. For lower paid hourly workers whose access to the evidence of discrimination and whose dollar losses are small, the administrative remedy may be the only one. Private attorneys will be hesitant to take such cases on a contingency due to both their difficulty and their small potential for recovery. With the EEOC the claimant does not have to find a willing attorney, but the investigators at the EEOC are saddled with the same law as any other plaintiff. Thus, a difficult small case is not made easier in the administrative setting -- a fact which may well account for the large number of age discrimination complaints that are closed without any recovery for the claimant.
On the other end of the spectrum where the cases are difficult because they are too big for private attorneys, the EEOC can be quite effective. Thus, using its size and unique ability to bring class actions pursuant to the ADEA the agency has had some 'big money' successes in reduction-in-force cases (EEOC, 1999). Similarly, its size has given it the advantage of being able to compile and maintain sophisticated legal research into the proper implementation methods allowable under the ADEA and associated statutes (EEOC, 1992). The cold fact is that its immunity from having to make a profit and its sheer legal might allow the EEOC to bring large dispersed cases that would be unmanageable and unprofitable for even the bigger urban law firms.
At this dawn of a new millenium the aging baby boomer looking for a second career, or just a job, finds himself faced with competing demands. His body and mind are still healthy and his country needs him to work longer. According to the popular image of the "good old age," however, he is supposed to be making room for the new generation by turning his attention to gardening and shuffleboard. Social pressures -- even conflicting ones -- are enforced through economics. Thus, our baby boomer in this dilemma will likely lack the funds for any sort of desirable retirement, yet be limited by ageism in the workplace from carrying out his nation's request to stay productive. This roadblock for our aging population is a result of our collective inability to undo certain social expectations regarding the elderly that we created earlier in this century. And for gerontologists, the pressure is on for a painless policy response.
Peter Singer, the noted bio-ethicist, once remarked that every policy maker is by necessity a utilitarian (Sharbet, 2000). As such, policy makers are saddled with the task of making the calculations of pleasure and pain that Jeremy Bentham suggested to legislators over a hundred years ago (Bentham, 1789). To many, however, utilitarianism is less associated in the mind of Americans with Bentham than it is with Star Trek's Mr. Spock who notes that the good of the many shall prevail over the good of the few. Such calculations certainly went into the decisions in 1967 to limit the application of the ADEA to only those under the "expected and normal" retirement age of sixty-five. Now, however, the expected and normal vision of age and retirement that we created in 1935 and reinforced with the first vision of the ADEA no longer fits our societal needs.
The utilitarian weakness is that calculations of overall good are subject to the prejudices and short-sightedness of the times in which they are made and the people who make them. Middle class employed policy makers envision a middle class version of happiness. Thus, one gets an ADEA that is at its best helping employed middle class managers and professionals stay employed. Hourly workers and those with no job at all have little practical access to similar remedies. To a certain extent, post-modern and deconstructionist theories coming out of Europe and American academia have managed to "out" some of these prejudices and power relationships, but as Singer is fond of commenting, "there is no deconstructionist social policy." This tension plagues gerontology. Administrators want quick policy fixes enen thought the theoretical and scholarly foundations of the discipline have yet to solidify.
Although the ADEA and its local counterparts have not provided a particularly broad and encompassing remedy for ageism in the work place, when viewed as a larger social phenomenon, the anti-discrimination statutes seem to have played a useful role. Age discrimination is still pervasive, implicating some very basic psychological mechanisms in the way we relate to other people (Bendick, Brown & Wall, 1999). There is, however, a general public support for older workers (Ferraro, 1989). In addition, the threat that statutes such as the ADEA create for employers tends to root out the most blatant mistreatments of older workers and applicants. The current statutes are likely to keep this trend alive even if the courts remain unwilling to expand the discriminations statutes into the kind of disparate-impact and "identity politics" that typify other realms of discrimination law.
This means there is both good and bad news for our aging baby boomer in search of work. The good news is that the way in which we view older citizens is changing. The ironclad correlation between chronological age and retirement is weakening. People support and encourage "the idea" of older workers. The bad news is that few people encourage the "flesh and blood" older workers, and there is not a lot the law will do about it. There are likely to be some high profile age discrimination cases -- mostly termination type cases -- as higher paid baby boomers face the end of their careers. Older workers seeking a career changes or simply a new job to pay the rent will, however, have to endure reduced opportunities and an under-valuation of their potential for some time to come. The times and thus the visions of old age are changing, but such changes take time, and the boomers may well have come to their later years just one generation too early.
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