Age discrimination

• Federal Protection
• State Protection

American society is “graying” as health care improves and the baby boom generation approaches retirement age. According to the U.S. Census Bureau, the median age of the population rose from 30.0 in 1980 to 35.2 in 2005. With the aging of the American population have come increased efforts to combat age discrimination in employment and education.
Older Americans have many legal options to contest age-based discrimination. At the federal level, the Equal Protection Clause presents a general remedy for all plaintiffs charging age-based discrimination, regardless of their age. Two federal statutes, the age discrimination in employment act (for people over 40 years old) and the Age Discrimination Act provide more specific defenses earmarked for the workplace and educational programs receiving federal financial assistance. Some states also offer protection against age bias in constitutional and statutory provisions, sometimes more extensively than the federal measures. These options and education-related cases are reviewed in this entry.

Federal Protection

The Equal Protection Clause of the Fourteenth Amendment guarantees to all persons equal treatment under the law. For individuals and settings not covered by the age discrimination in employment act and the Age Discrimination Act, the general applicability of the Equal Protection Clause provides the only federal basis for challenging age-based discrimination. As the Supreme Court explained in Massachusetts Board of Retirement v. Murgia (1976), courts apply the rational basis test in age claims brought under the Equal Protection Clause, because age is not a suspect classification, and there is no fundamental interest in governmental employment or federal fundamental right of participation in educational programs. Under the rational basis test, public educational institutions must show only that their actions reasonably further a legitimate state objective or interest.
A Fifth Circuit Court’s review of a public university’s housing policy offers an example of an equal protection claim against age discrimination. The institution required student on-campus residence but exempted all undergraduates aged 23 and above. Finding no rational basis for the arbitrary distinction in treatment between students aged 21 and 22 and those aged 23 and above (no claim was made for those under 21), the appellate court ruled that the housing policy was unconstitutional.
The age discrimination in employment act (ADEA) of 1967 is an effective federal remedy for older Americans who experience age discrimination in the workplace. The ADEA protects employees and prospective employees (applicants) aged 40 and over from age-based employment discrimination in hiring, dismissal, promotion, demotion, and transfer. The act also applies to compensation and conditions of employment, employee benefit plans, and employer attempts to retaliate against those who exercise their ADEA rights.
The ADEA covers both disparate treatment charges, when employers take less favorable action against employees because of their age, and Disparate Impact claims, where facially neutral employer policies impact disproportionately an ADEA-protected group. When confronted with disparate treatment or impact claims, the ability of officials to present non–age-based justifications for their policies or actions can be key to whether they prevail in the litigation. For example, in breaking with another federal appellate court, the Seventh Circuit Court found no ADEA violation in a school policy that hired less experienced, and therefore generally younger, applicants, because they are more affordable. Moreover, two other appellate courts upheld university policies that paid professors based on market value, even if it resulted in younger faculty being paid more than older colleagues. Courts have divided over early retirement incentive plans that offer benefits only to those educators who accept the option by a certain age.
The Age Discrimination Act of 1975 is a federal statute that shields both employees and, unlike the ADEA, students from age-based discrimination. Patterned after Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act states that “no person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance” (42 U.S.C. § 6102 (1975)).
In light of the passage of the Civil Rights Restoration Act of 1987, the Age Discrimination Act applies to all aspects of educational institutions if any part of their operations receives federal funds. While used by plaintiffs infrequently, the Age Discrimination Act provides a statutory basis to bring age-based discrimination claims against schools in conflicts involving educational programs or employees under the age of 40.

State Protection

Plaintiffs may find additional protection against age discrimination in their state constitutions and antidiscrimination statutes. Some states, such as Florida (FLA. STAT. §§ 112.043–044 (2006)), have enacted statutes that prohibit age discrimination generally and do not limit coverage to those aged 40 and above. Others, including Iowa (IOWA CODE §§ 161–8.15, 216.6 (2006)), explicitly exceed ADEA coverage by protecting all persons 18 years of age and older from differential treatment based on age.
Plaintiffs in some instances resort to their state, rather than federal, provisions to challenge alleged age discrimination. For example, in 1978 the Supreme Court of Utah reviewed the rejection of a 51-year-old applicant for admission into a graduate educational psychology program exclusively because of her age. The court, while remanding the case to grant officials at the state university an opportunity to demonstrate that they relied on legitimate state purposes for their actions, found that denying admission solely on the basis of age violates state (and federal) equal protection.
As the American population grows older, one can expect continued challenges to age-based discrimination, particularly in the workplace.

See also age discrimination in employment act; Disparate Impact; Equal Protection Analysis; Teacher Rights
Legal Citations
Age Discrimination Act, 42 U.S.C. §§ 6101 et seq.
age discrimination in employment act, 29 U.S.C. §§ 621 et seq.
Civil Rights Restoration Act, 20 U.S.C. § 1681.
Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976).