Behind the Story: Legal Inequality of Older Workers

pbsPBS NewsHour recently aired a shocking story about a highly educated older woman hurtling toward financial disaster because she hasn’t been able to find work for years due to age discrimination in employment. 

These types of stories generally bemoan and debunk false ageist stereotypes but rarely go beyond the surface to ask why.

Why does the media fail to acknowledge how the American legal system permits and even encourages age discrimination in employment?

In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I indisputably show that a major reason for widespread and unaddressed age discrimination in the United States is the lack of protection afforded to older workers under federal law.

Consider:

  • When the Age Discrimination in Employment Act of 1967 (ADEA) was adopted it was far weaker than Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, color and national origin.
  • The U.S. Supreme Court in 2009 effectively eviscerated the already weak ADEA, interpreting the law to make it far more difficult for older workers to prevail in an age discrimination lawsuit in federal courts.
  • The U.S. Congress for years has failed to pass legislation (i.e. Protecting Older Workers Against Discrimination Act) that would reverse at least some of the damage caused by the  2009 U.S. Supreme Court decision.
  • Though President Barack Obama vowed during his first campaign to strengthen the ADEA, he did  the opposite. He signed an executive order in 2010 that permits the nation’s largest employer, the federal government, to engage in age discrimination in hiring. Furthermore, his administration sanctioned age discrimination by America’s largest corporations.
  • Despite a major increase in age discrimination complaints since the recession, the EEOC has done virtually nothing to combat the problem.

It is  frustrating when a mainstream national media outlet seems clueless about the legal underpinnings of age discrimination employment.

Would employers be vigilant about halting race or sex discrimination in employment if there were no legal consequences for these behaviors? History indicates not. So why should age discrimination be any different?

Rampant age discrimination in employment will continue unabated until there are effective legal sanctions. 

I have proposed repealing the ADEA and adding age as a protected class to Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, color and national origin. Age was initially included in Title VII but was excluded when Congress decided more study was needed on the problem. Older workers deserve the same rights as other victims of illegal discrimination.

Society must stop condoning age discrimination in employment. America loses valuable knowledge and experience when older workers are consigned to long-term unemployment, under-employment and early retirement. And age discrimination is expensive. Society subsidizes age discrimination through increased health and social services costs that result from discriminatory firings and layoffs and the refusal to hire older workers.

Finally, the human toll of age discrimination is no less severe than with other types of discrimination.Someone once said the measure of a civilization is how it treats its weakest members.

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Author: pgb

Attorney at Law, author and blogger.

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