Age Discrimination Law Is Second-Class?

In an opinion piece in the New York Times, it’s argued that the Age Discrimination in Employment Act (ADEA) gets second-class treatment. It’s not taken as seriously as other types of unlawful discrimination. The U.S. Supreme Court made the ADEA’s inferiority more distinct in Gross v. FBL Financial Services, Inc. by ruling that an older employee must prove age was the decisive factor in an adverse employment decision — not merely a contributing factor as is sufficient in a race or gender claim.

Not too long after beginning this blog, I did a series of posts on age discrimination. (Click here, here, here, here and here.) As I predicted in my earlier posts and as noted in the Times, age discrimination complaints are increasing. The bad economy has made the increase more rapid.

In the Times, it’s said that while racism is considered to be inherently wrong, “there is something natural about the old making way for the young.” If that’s the reason for terminating an employee in the protected age group (age 40 and above), a violation of the ADEA has occurred.

What the Times and the ADEA itself miss is that at some point in every person’s life, age begins to make a difference at work. That’s why the Gross decision makes sense. A contrary ruling would have said that an employer can never take age into account at all under any circumstances. That’s unrealistic.

It’s wrong to say that when an employee reaches 60 or 65 (or any age for that matter), he’s got to quit. It’s no better to say that age can never be taken into account, because age does impact job performance at some point.

Congress is considering a proposal that will overturn the Gross case. That would be a bad decision.