Discrimination, according to the economic theory, is said to exist if employers, coworkers, or consumers have a distaste for making contact with a certain group of persons, which ends up being reflected in the market transactions. In the workplace, age discrimination arises when someone (an applicant or employee) is treated less favorably based on his/her age. However, as for employees who are 40 years or older, the Age Discrimination in Employment Act (ADEA) protects them from age discrimination. According to the American Association of Retired Persons (AARP), the majority of older American workers agree that Congress should legislate tougher protection against age discrimination in the workplace.
Initially, an employer had to prove whether age had mattered in making employment decisions in cases where a prospective worker challenged such decisions citing age discrimination. However, in a 2009 Supreme Court ruling, the matter was overturned. The worker is the one who now proves that his/her demotion or firing had to do with his/her age. This paper seeks to discuss a policy bill that was introduced by two Iowa senators seeking to overturn the ruling and revert to the old way.
According to the US Bureau of Labor Statistics (BLS) (2009), the median age of the American workforce is 40 years or older. It has consequently led to half of American workforce in the private sector to be covered by the ADEA. The AARP argues that American employers poorly define age discrimination as the setting of arbitrary age limits for hiring, firing, promoting, demoting, compensation, discharge, benefits, etc. without considering the employees’ potential. They continue to argue that these employers are misguided in their generalization of what older employees can or cannot perform.
The bipartisan Senate bill, introduced by two senators, Tom Harkin, a Democrat, and Chuck Grassley, a Republican, seeks to restore older workers’ rights. The ruling on the case between Gross and FBL Financial Group prompted this bill. According to legal experts, that decision made it cumbersome for older employees to win discrimination cases in comparison to other protected groups since the plaintiff eventually has to provide evidence of discrimination based on age, race, or gender rather than on incompetence or poor dressing. This bill, however, attempts to revert the situation to the days when a worker was only supposed to prove that age was the main factor of workplace discrimination.
The bill titled Protecting Older Workers Against Discrimination Act (POWADA) came at a time when the Supreme Court in the case of the University of Texas Southwestern Medical Center v. Nassar has put in legal barriers similar to the 2009 case. Thus, given the complexities of such cases and the Supreme Court’s standpoint on the matter, this policy bill will greatly help in restoring parity and civil rights of older workers in American society. Furthermore, a third of the workforce is projected to be older than 50 years by 2016.
It is evident that Americans have been extending their stay at their workplaces for the past three decades. This situation was adversely affected by the 2008 economic downturn after the older workers lost their jobs, retirement savings, and housing wealth. The economic meltdown leads to what is termed as ‘first to be fired and last to be hired’ syndrome. According to a report, older Americans stay jobless longer than their younger counterparts. Furthermore, after finding jobs they also take bigger pay cuts than their younger counterparts.
The Gross v. FBL ruling has constantly been used by lower courts in cases involving age discrimination. Consequently, the AARP together with other civil rights advocacy groups has welcomed the move to table the bill. The legislators thus argue that it is in order to clarify the law to ensure that other people are not put in situations similar to Jack Gross’. Older Americans add enormous value to the society and economy, hence they deserve protection as was initially intended by the Congress. The AARP asserts that persistence of age discrimination is still a significant barrier to the retirement security of older Americans. Therefore, they applaud the reinstatement of the POWADA legislation and promise to continue fighting for its passage.
The bill, supported by most Senate Democrats, is expected to become law since Grassley, a Republican, has endorsed it. Enactment of the bill is not just crucial for the restoration of older workers’ rights. Justice Thomas admitted that his decision in the Gross’ case was far-fetched, though it is still used as a reference in most cases. Hence, he concurs that the Protecting Older Workers Against Discrimination Act will reinstate essential fairness.
The Act reverses the Gross’ decision and restores the law to what it was for decades before the Court’s decision. The Act makes clear that when a victim shows that discrimination was a ‘motivating factor’ behind a decision, the burden is properly on the employer to show that it complied with the law. This bill is designed on the Civil Rights Act of 1991, which passed the Senate on a bipartisan basis of 93 to 5. The Civil Rights Act of 1991 classified the ‘motivating factor’ framework for the race, gender, national origin, and religious discrimination. The Act clearly shows that this ‘motivating factor’ framework also applies to the American Disability Act (ADA) and the Rehabilitation Act as well as retaliation claims concerning race, gender, national origin and religion that touches on the recent Court decision in Nassar.
One of the major problems currently faced by this category of people is the ever-increasing cost of health care insurance and the fact that most employers are reluctant to pay for them. Moreover, the cost of providing insurance cover is higher for older employees. As a result, most of the older people are left out of the job market partly due to this issue. Since the legislation allows only full-time employees to be insured, the older employees, who are currently on Medicare, are also facing difficulties in the job market.
The other problem is the fact that the probability of work-limiting disabilities is higher in older employees than in the younger ones. However, Neumark (2008) notes that under such situations, they will be covered by both the ADEA and ADA. Interestingly, he asserts that the ADA is more likely to respond to the plight of such employees in comparison to the ADEA. This he attributes to the fact that suits filed by the ADA are more likely to win if filled by older individuals.
The ADEA recognizes women, and other minorities, such as poor, disabled, and unemployed to be more vulnerable to age-related work discriminations. It has been discovered that there are between 15,000 and 20,000 age-related work issues filled with the Equal Employment Opportunity Commission (EEOC), a body that mainly handles gender-based, racial, religious, and national origin work-related discriminations. Therefore, it is evident that age discrimination at the workplace is in excess of women, who are also discriminated against based on their gender.
The proponents of reinstating the older legislation relating to the issue of age discrimination draw their arguments mainly from the theory of ‘justice as fairness’. This theory was put forward by John Rawls in his piece Justice as Fairness: Political not Metaphysical (1985), which addresses the issue of justice. The theory has two key principles: liberty and equality, with equality, subdivided into fair equality of opportunity and the difference principle. These principles are normally used in order to ensure that the ‘disadvantaged’ are catered for and neither hurt nor forgotten. In particular, the principle of fair equality of opportunity greatly relates to this problem of age discrimination. From a social justice perspective, any employment legislation should protect the rights of all individuals without regard to their position in the workplace, or their age, either young or old.
It has been noted that the biggest social cause of the age-related workplace is the ‘baby boom’ generation that is reluctant to go into retirement and stay at home. The ‘baby boomers’ were born in the Post-World War II years from 1946-1964. An AARP report indicated that these ‘baby boomers’ are refusing to retire arguing that they prefer working for longer, given the money and health insurance.
Furthermore, it is evidence that older workers face more difficulties in adjusting themselves from long-term employment to partial retirement. Thus, at times they end up retiring earlier than they had anticipated instead of actually changing jobs or reducing the number of working hours.
Finally, it has been observed that measures that are meant to curb age discrimination greatly contradict expectations placed on the older workforce. For instance, the idea of encouraging retirement in this group is met with the decreasing incentives to retire, reduction in the value of both private and public pensions, etc.. Therefore, the majority of ‘baby boomers’ are not willing to go into full retirement citing such flaws.
Critics of the ADEA argue that it has failed to serve the interests of the older workforce in cases of recession, downsizing, and economic restructuring. It was particularly noted during the 2008 recession. They, therefore, point out that legislations in the ADEA have to be changed in order to return parity. One of the changes they want is based on the ‘reasonable factor other than age’ (RFOA), which allows employers to discriminate provided that profit is identified as the motivating factor.
Additionally, these critics argue that in its current state, the process of filing a case under the ADEA is a time-consuming and tedious process that tends to favor the defendant, i.e. employers. Thus, the time restrictions should be eliminated or adjusted to reflect the time when discrimination is discovered as opposed to when it took place.
The ADEA has had its fair share of opponents. Such opposition groups argue that the ADEA is also discriminatory since it does not protect workers under the age of 40. Thus, it is not illegal for an employer to favor persons over 40 years of age over younger ones. They further argue that the issue of age discrimination is overhyped and thus the ADEA is benefitting some workers at the expense of others. In addition, they cite the current demographic trends by suggesting that in the coming decades the ADEA will be more of a hindrance rather than protection due to aging populations.
The other outward problem in implementing the ADEA and other age-related policies is that, unlike race and gender, which is unchangeable, the age does change. An individual who is young today will be older tomorrow. Thus, whilst the policy might favor and protect an individual in a given job, it might not favor the same individual in another job. For example, a 55-year-old model cannot be favored in the role of advertising teenage clothing. Such a case is less likely to be said about race and gender issues.