Hands-Tying and the Age Discrimination in Employment Act

Abstract

Title VII's prohibitions on discrimination based on race, gender, religion, and national origin are typically justified on grounds other than economic efficiency. These prohibitions reflect, for many of us, a basic normative judgment that different outcomes for equally qualified employees of different races or other protected categories are simply wrong, wholly apart from their efficiency. This argument is more difficult to sustain with regard to age discrimination, the subject of the Age Discrimination in Employment Act of 1967 (ADEA). As the Supreme Court noted in Massachusetts Board of Retirement v. Murgia, holding that age is not a suspect classification under the Equal Protection Clause: "[O]ld age does not define a 'discrete and insular' group ... in need of 'extraordinary protection from the majoritarian political process.' Instead, it marks a stage that each of us will reach if we live out our normal span." Old age has a temporal and, most critically, a universal element (almost universal at least) that is lacking in the categories covered by Title VII. These features mean that distributive or other gains for older workers are likely to come at the expense of these same workers in earlier years, making rules against age discrimination difficult to justify on traditional distributive or rights-based grounds.