Academic journal article Journal of Business and Behavior Sciences

Age-Based Hostile Environment

Academic journal article Journal of Business and Behavior Sciences

Age-Based Hostile Environment

Article excerpt

INTRODUCTION

Age is a common factor used in legislation and by society to establish rights, privileges, behavioral expectations and, often pejorative stereotypes. (Eglit, 2009). Older workers are often considered less employable the longer they remain unemployed. (Manger, 2014). In recognition of these realities, Congress enacted the Age Discrimination in Employment Act of 1967 (ADEA) "to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; and to help employers and workers find ways of meeting problems arising from the impact of age on employment." (Civil Rights Act).

The ADEA's origin arose from a 1964 Executive Order issued by President Johnson declaring a public policy against age discrimination in employment. In 1967, after considerable debate, Congress passed the ADEA in order to eliminate age discrimination. The Congressional debate addressed a balancing of the right of older workers to be free from age discrimination in employment with the employers' prerogative to control managerial decisions. The ADEA, and its numerous amendments, are intended to recognize these competing interests by prohibiting arbitrary age-based discrimination in the employment relationship. Most states subsequently adopted their own anti-discrimination laws, largely patterned on the precepts of the ADEA protecting workers. (Special Committee on Aging, 1992).

But not all anti-discrimination laws are created equal. Although the ADEA has been described as "...part of a wider statutory scheme to protect employees in the workplace" along with Title VII of the Civil Rights Act (race, color, gender, national origin and religion); the Americans with Disabilities Act of 1990 (disabilities); the National Labor Relations Act (union activities) and; the Equal Pay Act of 1963 (sex), the ADEA has a more narrow scope than these other regulatory schemes. (Crawford v. Median General Hospital, 1996). In fact, except for the substitution of "age" for "race, color, religion, sex, or national origin," the language defining "prohibited employer practices" under the ADEA and Title VII is identical. Unlike Title VII, however, the ADEA significantly narrows its coverage by permitting any "otherwise prohibited" activity. (Smith v. City of Jackson, 2005].

Furthermore, unlike the Title VII regulatory schemes that prohibit categories of conduct that have historically plagued minority groups in society in the fields of employment, housing, consumer financing, and other social benefits, the ADEA and other age-based discrimination laws limit their applicability solely to employment and labor organization matters. (Swift, 2006). Exacerbating this difference in the scope of age versus Title VII forms of other discrimination is an apparent reluctance or inability by the courts to enforce age discrimination laws in a consistent manner. A 2004 study that analyzed age-based rulings versus racial and gender discrimination cases indicates a direct correlation between the judges' age and their sensitivity to age discrimination. The youngest judges were less sympathetic to age discrimination claims than older judges. (Manning, Carroll and Carp, 2004).

Thus, in the almost fifty years since the passage of ADEA, the growth of federal and state laws prohibiting age discrimination suggest age-based discrimination is virtually as pernicious in American society as racial and gender discrimination. (Neumark, 2003). This problem is exacerbated by the fact that Baby Boomers appear to be postponing their retirements during the economic downturn which began in 2008, thus creating greater numbers of workers who may become victims of age discrimination.

The U.S. is aging - individuals over the age of 40 constitute 55.5% of the total population. Twenty-four percent of those employed in the workforce are 54 years old and older, and this number is expected to increase to at least 34% by the year 2020 (Department of Labor, 2013). …

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