Age Discrimination Legislation in the United States

By Neumark, David | Contemporary Economic Policy, July 2003 | Go to article overview

Age Discrimination Legislation in the United States


Neumark, David, Contemporary Economic Policy


I. INTRODUCTION

Legislation prohibiting age discrimination in the United States dates back to the decade of the 1960s, when along with the Equal Pay Act and the Civil Rights Act barring discrimination against women and minorities, Congress passed the 1967 Age Discrimination in Employment Act. Gender and race discrimination per se, along with the impact of the Equal Pay Act and Civil Rights Act, have been the primary focus of researchers studying discrimination and by far the more vociferously debated.

But a thorough analysis and understanding of age discrimination legislation is critical. The U.S. Census Bureau's "middle series" projections indicate that by 2025 the share of the U.S. population aged 65 and over will grow from about 13% to 19%, and the share aged 55 and over will grow from 21% to 30% (see www. census. gov/population/projections/nation/summary).

A rapidly aging population in the United States (and a similar phenomenon in other industrialized countries) threatens to vastly increase the social costs of any discriminatory barriers to older workers' employment or, alternatively, to magnify any costs or distortions caused by age discrimination legislation.

The goal of this article is to provide a summary, critical review, and synthesis of what we know about age discrimination legislation. In so doing, the article first traces out the legislative history and the evolving case law and discusses implementation of the law. It then moves on to review the existing research on age discrimination legislation--research that addresses the rationale for the legislation, its effectiveness, and criticisms.

II. AGE DISCRIMINATION LEGISLATION IN THE UNITED STATES

A. The Evolution of Age Discrimination Legislation

Governmental efforts to counter age discrimination in the United States predate the 1967 Age Discrimination in Employment Act (ADEA). The U.S. Civil Service Commission abolished maximum ages of entry into federal employment in 1956. Paralleling the executive orders that established affirmative action, Executive Order 11141, issued in 1964, established a policy against age discrimination among federal contractors, although administrative procedures for handling complaints were apparently not established (Miller, 1966). In addition, the 1965 Older Americans Act was designed to encourage research and programs to aid the aged, but also stated among its general objectives "the opportunity for employment with no discriminatory personnel practices because of age." Again, though, no administrative procedures were established.

Although federal actions prior to the ADEA were largely ineffectual, state statutes paralleling the later federal legislation were passed beginning in the 1930s, and as of 1960 eight states had age discrimination statutes along with enforcement mechanisms. (1) The state statutes were part of states' Fair Employment Practices Acts establishing state-level commissions to counter discrimination. These commissions first sought conciliation in response to claims of age discrimination. But they also had the power to hold hearings, issue findings of probable cause, and seek court-enforced orders for employers to cease and desist from discriminatory practices (Lockard, 1968; Miller, 1966). (2) Evidence on the effects of state statutes is discussed later, but it is noteworthy that when federal legislation was later established, the role of antidiscrimination commissions in states with their own age discrimination statutes was explicitly recognized, with enforcement generally first deferred to the state agency responsi ble for enforcing the antidiscrimination statute (U.S. Code, Section 633). (3)

Federal legislation, which is summarized in Table 1, began in earnest with the 1967 ADEA. The 1967 ADEA prohibited discrimination based on age, covering those aged 40-65, and including discrimination based on age within this protected age range (Piette, 1995). …

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