Public law
Introduction
It is about half a century since the enactment of Age Discrimination in Employment Act (ADEA) of 1967). It was based on the congressional research which demonstrated that the older worker-force was being deprived of equal opportunities for employment due to the unfounded stereotypes attributed to people of a given age demographic. The ADEA is majorly viewed as an outgrowth of 1964’s Civil Rights Act and Title VII which did not include age as being among the five classes it protected. Although it wasn’t unanimous, the sentiment of the majority in 1967 debates in relation to discrimination on the basis of age was quite clear; the stereotype that older employees were facing in United States had to stop.
The goals of ADEA
The passage of this act was done on the knowledge that the older population which was becoming a large portion of the workforce was being subjected to discriminations due to their age. They were being denied their basic right of equal opportunities for employment and prohibition of such discrimination had to be done for a specific age group (EEOC, n.d). Initially, only individuals between 40 and 70 were protected by the act, but the upper cap on age was removed in 1986. Its enactment was aimed at promoting the employment of the older population of workers based on their ability instead of one’s age , prevent any such bias and provide help in solving those problems that arose with a workforce that was constantly aging. On that note, the act prohibits any employer from firing, declining to hire or discriminating against a worker who is 40 years or older only due to their age. This means that it is illegal for an employer to deny worker fringe benefits or pay with age as the only justification (Barrington, 2015).
While the previous acts had succeeded in the elimination of the various blatant types of discrimination, age discrimination had become quite pervasive and the alleviation of long-term unemployment among the older folks had to be realized. Even after not including the aspect of age, the need to remove discrimination against of people in the basis of their age was cast away by Congress. During the earlier periods as the pension’s plans and retirement in 1940’s were formalized, a philosophy was spreading among the business organizations and private industry was to do away with the older workers and employ the younger ones. There was evidence that the main reason why the older generations was not being employed is because of the common assumption that age had significant impact on the job performance (Barrington, 2015). However, the Congress saw the need for considering one’s ability but not their age in considering opportunities for employment. The older workers who were seeking employment after attaining the age of 65 were confronting social barriers and intractable institutional barriers. The passage of the ADEA was aimed at advancing social and economic justice through protection of the rights of group of populations that was most vulnerable. Through the promotion of employment of older persons on the basis of their ability the intended social justice and upholding the rights of the entire population could be achieved (Barrington, 2015). This is because age discrimination at the place of work would affect the financial or economic wellbeing of these people in later days of their life.
Debate and politics preceding the passage of the Act
Efforts by the government to counter discrimination on the basis of age in United States can be dated before the enactment of ADEA which was first done in 1967 and later amended in 1968. The Civil Service Commission had gotten rid of maximum ages for entering the federal employment back in 1965. The Executive Order 11141 that was passed in 1964 had laid down a policy that prohibited discrimination of account of one’s age among any federal contractors even though there was no establishment of procedures that could handle complaints. Moreover, the Older American Act of 1965 had been designed with an aim of encouraging programs and research to help the aged population (Glenn, & Little, 2014). It also stated among its various general objectives that personnel practices that encouraged discrimination against employment opportunities on the basis of age was not allowed. However, this also was not followed by administrative procedures that could ensure the act could be followed in the work places.
Even though actions by the federal government before had been largely ineffectual, there were various state statutes that paralleled federal legislation that were to follow. These had been enacted in early 1930’s and by the end of 1960, there existed age discrimination statutes with established enforcement measures in 8 states (Glenn, & Little, 2014). They were part of Fair Employment Practices Acts of the State and they had laid in place commissions for countering discrimination at the state level. The commissions initially were seeking conciliation as a result of various claims of discrimination on the basis of age. They were also given the power to hear such cases, issue their findings of what caused this problem and seeking court orders for the employer to desist from such practices. By the time the federal legislation on discrimination were being enacted , the function of antidiscrimination commissions across the various states were recognized and followed their own age discrimination laws and they state agencies were responsible for enforcement. The federal legislation started earnestly with enactment of 1967 ADEA which illegalized age discrimination and covered those individuals who were 40-65 years old(Glenn, & Little, 2014).
With an aim of responding to the effect of increasing workers’ average age and a recognition of the problems arising from mandatory retirement and age discrimination, the Congress embarked on enacting various provisions in the period prior to the passage of ADEA. The passage of Civil Rights Act in 1964 had such objectives but failed to proscribe discrimination on the basis of age. However, it gave directions to the Secretary of Labor to conduct a study so as to examine the significance and impact of this vice. The study presented to the Congress by the secretary did not find enough evidence of any prejudice on the basis of intolerance or dislike for the workers who were older. Rather, this discrimination was in general founded on suppositions and its adoption was found among businesses that had concern on efficiency and impact of age on a person’s ability to perform at the work place (Neumark, 2003). There was a correlation found between the cultural deprivation, previous discrimination and the like and cases of race discrimination. The prejudice on age was found to be quite different since it is linked to a person’s ability. Where such discrimination was found it’s more likely to be associated with inaccurate and mostly ill-conceived assumptions about the impact of older age on productivity and abilities. Initially, the ADEA had been established autonomously from Civil Rights Act and included the Fair Labor Standards Act enforcement provisions (Neumark, 2003).
A major reason for deciding to have a separate measure for discrimination on age was to reduce the work load borne by Equal Employment Opportunity Commission whose creation aimed at administrating complaints emerging from the Civil Rights Act. The original Act offered various basic exemptions which included covering only employers with 20 or more individuals, jobs that had a specific requirement on age as a bona fide and those mandating pension plans and early retirement. The courts were motivated interpret this Act liberally so as to achieve the basic remedial purposes provided, which is to prevent the discrimination of older workers. The courts, however, opted for the practical provision’s more narrow analysis. In fact, the Supreme Court had in the beginning declined to adopt a more strict protection level issued to such cases emerging from the application of Civil Rights Act (Neumark, 2003). The view was that given an elaborate opportunity, there would be no expansion of fundamental interest categories or suspect classifications so as to offer sanctions against such kind of discrimination. Those wishing the Court would disregard the provisions of ADEA on mandatory requirements or interpret it narrowly had their hopes dashed by the later favorable treatment. This indicates the rigorous process through which the enactment and acceptance of the law by the court underwent (Neumark, 2003).
The testimony and passage of this Act by the Congress did not go unopposed despite the various reasons advanced in supporting anti-age discrimination. Specifically, some trade unions came out to oppose the ADEA. The National Association of Manufacturers was such unions that argued that the best way of fighting joblessness among the older population was through voluntary efforts. Moreover, opposition for the Act came from Chamber of Commerce which lauded the aims of anti-discrimination. However, the AFL-CIO and Labor Secretary were staunch advocates of the passage of this Act (Neumark, 2003).
Data
By 1967 it had become apparent to many that the elder population were excluded unreasonably from and covertly forced out of the working faction of population. The proof presented before Labor’s Senate Gneral Subcommittee and the Public Welfare showed some worrying statistics which led to the actions taken by the congress. For instance, applicants above 55 years were excluded from about half of all new job positions across the private sector (Glenn, & Little, 2014). Moreover, persons above 45 years were excluded from almost a quart of such jobs while those above 65 years were excluded from nearly all such opportunities. The additional data presented before the Congress also confirmed that this issue was getting worse with time given that jobs were become few; the people who bore the brunt were the older ones encountering the layoffs. For the 1965-1966 period alone, the part of workers outside employment for a month that were above 45 rose from about 30.2 % t0 34.3 %(Glenn, & Little, 2014) . The data also showed that older male workers had a large number that was leaving employment since 1951.
This was a stark picture presented to the Congress, where upon reaching 40 or 45, such workers underwent employment crises. Once they were out of workforce, they found it hard finding new jobs and they would end up becoming so discouraged that they stopped looking for employment. Even though various employment services were established locally to offer counseling, training and referrals, about half American out of a job and who were seeking aid through such services reported that they had not received any assistance at all (Neumark, 2003). It was also noted that state-based statutes on anti-age discrimination had not been roughly litigated in any court. By 1963 such statutes existed in only 10 states and more than half of the complaints that were filed in 1963 came from only three states. Only 10 to 15 complaints had been filed every year with half of them leading to a conclusion that there was discrimination of anti-discrimination laws. In addition, the various state laws lacked uniformity which brought about confusion in the places of work. To be specific, the congressional testimony of 1967 emphasized the fact organizations whose operations involved many states or whose labor force had mobile workforce were being distressed by the conflicting and diverse regulations. A major victim of such impacts of diverse laws of states was the airline industry (Neumark, 2003).
The availed data led to the common argument that perceiving a person as so old at 65 to the extent of warranting mandatory retirement from any industry originates from the era prior to the turn of the century. It was being propagated at a time when “life Expectancy for the population was nearly half of the present Americans and Europeans’ life expectancy” (Glenn, & Little, 2014). The argument further noted that people were not as old in terms of action, thought, mental and physical ability as people were at 40 during the 1880’s. But for some unknown reasons, the American were adhering to the perception that 65 years as being the appropriate age for retirement regardless of the reality that such a notion was outdated (Glenn, & Little, 2014) . There was no concrete reason for forcing people to retire at the age of 65.
The law’s verbatim
The Age Discrimination Act in Employment makes it illegal for an employer to decline or fail to employ or discharge a person or even single them out in terms of compensation, employment terms, privileges and conditions due to one’s age. The employer is also prohibited from classifying workers into groups based on age such that workers are unfairly deprived of employment opportunities (EEOC, n.d). For instance, an old worker may not be relegated by the employer to a certain employment level within a firm and then refuse to promote him or her. The function of the act is similar to the various federal discrimination laws like the American with Disabilities Act (ADA) but it has its own established rules in relation to which the requirements such as the employers covered (EEOC, n.d).
The employers defined in the ADEA comprises of any individual, business organization , labor or legal organization or an organized group of individuals whose organization in a given industry impacts on commerce and has twenty or above workers for every working day in every 20 or more weeks of the calendar in preceding or present calendar year (EEOC, n.d). The definition of the term employee excludes few people from the ADEA such as independent contractors who are not considered employees. Whether a person qualifies as an employee for the purpose of this act depends on the conduct of that individual. An employer - employee relationship must exist for the act to have effects. Persons who are elected in public office, political subdivision are not included, personal staff, immediate advisors of an officer who is elected and their policy makers (EEOC, n.d). The act also aims at providing an exception on compulsory retirement for high policymakers, which means that an employer is allowed to compel an employee who is over 65 years of age or older to retire if they hold a high policy making position , but is entitled to a minimum of $44,000 mandatory annual retirement benefit (EEOC, n.d).
Implications, criticism and recommendations
Since the inception of this law, few implications have been observed among the employers and employees at the workplaces. In fact, only small number of cases regarding the discrimination on the basis of age has been reported and such cases are the ones with clearest evidence and strongest claims. Moreover, only about 26 percent of such judgments have been awarded to workers. It has become difficult for employees to prove such discrimination especially because there are various provisions in this law for some exceptions that are frequently used by employers as their defenses. Such defense applies in areas where there is concern for public concern (Rothenberg & Gardner, 2011).
Even though some positive outcomes have been experienced from the passage of this Act, some empirical research has shown the existence of discrimination on age basis during the post –ADEA period. However , continuous criticism may not necessary mean that law has failed , since anti-discrimination law presumably does not aim at eliminating all discrimination but deterring the more serious and costly ones. In various instances, the various companies, private and public adopt the law to some extent so that a positive employment effect has been achieved. There is evidence to suggest that laws on age discrimination promote the retention of older employees even though cases of new employments are limited (Barrington, 2015).
The full impact of this law started to be realized in late 1970’s, when significant changes influenced the older employee’s legal environment. However, employers have been winning most if the cases that have been fought in the court. The cases that have mostly succeeded are those that are initiated by the government, a difference that could be attributed to the possibility of government initiating lawsuits where the outcomes are likely to favor the plaintiff (Barrington, 2015). However, the Act has been undermined to a point where it does not offer enough protection to the older workforce. It has been criticized because of the notion that it rationalizes discrimination practices due to shift in political consensus as the nation was moving to the right while neo-liberal economics were becoming common. Issues such as increasing cost of hiring older employees due to legal rights have also drawn criticism (Rothenberg & Gardner, 2011). Based on such information, a positive assessment of the Act in the country should be embraced instead of a negative one.
Conclusion
The ADEA was meant to prevent discrimination at the workplace on the basis of age. Before the enactment of the law, evidence was enough to show the existence of such discrimination against the older workforce. The negative stereotypes directed against older workers may offer slight explanation on differential treatment. While there was positive intention of this Act, it may have failed to offer full benefits in practice as employers have largely won lawsuits against such practices.
References
Glenn, J. J., & Little, K. E. (2014). A Study of the Age Discrimination in Employment Act of 1967. GPSolo, 31, 41.
Rothenberg, J. Z., & Gardner, D. S. (2011). Protecting older workers: The failure of the age discrimination in employment act of 1967. J. Soc. & Soc. Welfare, 38, 9.
Neumark, D. (2003). Age discrimination legislation in the United States. Contemporary Economic Policy, 21(3), 297-317.
Lahey, J. N. (2006). How do age discrimination laws affect older workers. Boston, MA: Center for Retirement Research at Boston College.
Barrington, L. (2015). Ageism and bias in the American workplace. Generations, 39(3), 34-38.
EEOC (n.d).The Age Discrimination in Employment Act of 1967.Retreived from: https://www.eeoc.gov/laws/statutes/adea.cfm
