AGE DISCRIMINATION

The racial civil rights revolution of the 1950s and 1960s generated interest in constitutional protection for groups other than racial and religious minorities. Enhanced constitutional scrutiny of sex discrimination may be a consequence of the civil rights struggle.

Discrimination on the basis of age, however, has not become constitutionally suspect. In massacusetts board of retirement v. murgia (1976) the Supreme Court held that some forms of age classification are not suspect and sustained against equal protection attack a state statute requiring uniformed state police officers to retire at age fifty. In a per curiam opinion, the Court concluded that the retirement did not affect a fundamental right, and characterized the affected class as uniformed police officers over age fifty. Perhaps intending to leave open heightened scrutiny of some age classifications, the Court stated that the requirement in Murgia did not discriminate against the elderly. In light of its findings with respect to the nature of the right and the relevant class, the Court held that mere rationality, rather than strict scrutiny, was the proper standard of review in determining whether the statute violated the equal protection clause. It found that the age classification was rationally related to furthering the state's interest of protecting the public by assuring physical preparedness of its uniformed state police.

In Vance v. Bradley (1979) the Court, in an opinion by Justice byron r. white, again applied the rational basis test and held that Congress may require retirement at age sixty of federal employees covered by the Foreign Service retirement and disability system, even though it imposes no such limit on employees covered by the Civil Service retirement and disability system. In sustaining the mandatory retirement age, the Court emphasized Congress's special consideration of the needs of the Foreign Service. "Congress has legislated separately for the Foreign Service and has gone to great lengths to assure that those conducting our foreign relations will be sufficiently competent and reliable in all respects. If Congress attached special importance to high performance in these positions … it was quite rational to avoid the risks connected with having older employees in the Foreign Service but to tolerate those risks in the Civil Service."

But in the legislative arena, age discrimination did feel the effects of the constitutional egalitarian revolution. Section 715 of the civil rights act of 1964 required the secretary of labor to report to Congress on age discrimination in employment. In 1965 the secretary reported persistent arbitrary discrimination against older Americans. In 1967, upon the recommendation of President lyndon b. johnson, and relying on its powers under the commerce clause, Congress passed the Age Discrimination in Employment Act (ADEA). The act, which has been amended several times, prohibits employment discrimination against persons between the ages of forty and seventy.

In equal employment opportunity commission v. wyoming (1983), prior to its overruling of national league of cities v. usery (1976) in garcia v. san antonio metropolitan transit authority (1985), the Court sustained against a tenth amendment attack the constitutionality of Congress's 1974 extension of the ADEA to state and local governments. In a 5–4 decision, the Court found that applying the act's prohibition to a Wyoming mandatory retirement age for game wardens would not interfere with integral state functions because the state remained free to apply reasonable standards of fitness to game wardens.

Building on a provision in Title VII of the Civil Rights Act of 1964, the ADEA allows employers to take otherwise prohibited age-based action when age is a "bona fide occupational qualification reasonably necessary to the normal operation of the particular business." In its early interpretations of this provision, the Court has not given the defense an expansive reading. In Western Air Lines, Inc. v. Criswell (1985), in an opinion by Justice john paul stevens, the Court held that Congress's "reasonably necessary" standard requires something more than a showing that an age-based requirement is rationally connected to the employer's business. Relying on the heightened standard, the Court therefore rejected an airline's defense of its requirement that flight engineers retire at age sixty. In Johnson v. Mayor & City Council of Baltimore (1985) the Court held that a federal statute generally requiring federal fire fighters to retire at age fifty-five does not establish that being under fifty-five is a bona fide occupational qualification under the ADEA for nonfederal fire fighters.

In the Age Discrimination Act of 1975 (ADA), following the racial antidiscrimination model of Title VI of the Civil Rights Act of 1964, Congress prohibited discrimination on the basis of age in programs or activities receiving federal financial assistance. The ADA thus joins Title IX of the education amendments of 1972 and section 504 of the rehabilitation act of 1973, which prohibit, respectively, sex discrimination and discrimination against the handicapped in federally assisted programs. The ADA vests broad authority in the secretary of health and human services to promulgate regulations to effectuate the statute's antidiscrimination mandate. Like the ADEA, the ADA contains exceptions allowing discrimination on the basis of age when age is reasonably related to the program or activity. Other specific federal spending programs contain their own statutory prohibitions on age discrimination.

Theodore Eisenberg
(1986)

Bibliography

Schuck, Peter H. 1979 The Graying of Civil Rights Law: The Age Discrimination Act of 1975. Yale Law Journal 89:27–93.

United States Department of Labor 1965 Report to the Congress on Age Discrimination in Employment under Section 715 of the Civil Rights Act of 1964. Washington D.C.: Government Printing Office.