A ‘Right’ That Is Not Enforced Is An Illusion

What does it mean to have a right when that right is not enforced?

Older Americans have a right to be free from age discrimination in employment but that right is widely, blatantly and unapologetically ignored – even by our own U.S. government, which older workers support through their tax dollars.

Now the Organization of American States (OAS) has approved the Inter-American Convention on Protecting the Human Rights of Older Persons to ensure that older people in the Americas enjoy rights on an equal basis with other segments of the population. The Convention, approved at an OAS meeting in Washington, DC, last month, asserts that all existing human rights and fundamental freedoms apply to older people.

OAS Member States are urged to adopt “legislative or other measures”   necessary to give effect to the rights and freedoms of older adults, including awareness campaigns. The Convention was signed immediately by the governments of Argentina, Brazil, Chile, Costa Rica and Uruguay. The United States is a member of the OAS but has not signed the Convention (perhaps because that would require the Obama Administration to stop discriminating against older workers?).

Of course, the U.S. Congress passed a law almost 50 years ago to protect older workers from age discrimination. Today the Age Discrimination in Employment Act of 1967 is widely and shockingly ignored.  In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show the ADEA was weak to begin with and has been eviscerated by the U.S. Supreme Court. Today the ADEA offers far fewer protections to older workers who are victims of discrimination than its sister statute, Title VII of the Civil Rights Act of 1964, provides to workers who are discriminated against because of race, sex, religion, national origin and color. Additionally, the U.S. Supreme Court accords age discrimination its lowest standard of review, far lower than that accorded to ace or sex discrimination.

The reality is that older workers in the United States have never enjoyed an”equal right” to be free from harmful and unfounded discrimination in the workplace.

Lack of enforcement of the ADEA has  transformed the right of older workers to be free from age discrimination in employment into a cynical illusion. Older Americans are routinely plunged into poverty as a result of age discrimination. Moreover, organizations that one would expect to object to this sorry state of affairs for older Americans are largely silent.

The OAS calls the Convention Protecting the Human Rights of Older Persons the first “regional instrument” of its kind in the world “to promote, protect and ensure the recognition and the full enjoyment and exercise, on an equal basis, of all human rights and fundamental freedoms of older persons, in order to contribute to their full inclusion, integration and participation in society.”

According to OAS Secretary General Luis Almagro the Convention represents “a very important step for everyone. Our slogan of ‘More rights for more people’ is fully in the logic of the Convention, which reaffirms the hemispheric dimension of our work, in this case the commitment to ensure the full enjoyment of the rights of older people, taking into account their needs and specific requirements.”

But it will only be an important step if the right created by the OAS is actually taken seriously and enforced by its member states.

The OAS states that people aged 60 or older in the Americas represent 14 percent of the hemisphere’s population (over 135 million). By 2030, nearly two in five people will be 60 or older, and in total there will be more than 215 million older people in the Americas.

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Author: pgb

Attorney at Law, author and blogger.

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