Age discrimination law turns 40
John Rother, public policy director for AARP, said the act emerged from the civil rights movement.
"The whole message was, it's not fair or proper or permissible to treat people on the basis of factors over which they have no control - their race, their gender or their age," he said.
Rother discusses the impact of the act, which turns 40 years old this month.
Question: How effective has the Age Discrimination in Employment Act been?
Answer: It's had a big impact on the business community, especially larger businesses that have legal counsel. There are obvious changes, like there's no more mandatory retirement, no more recruiting on the basis of age. I also think it's signaled to employees, 'It is your decision how long you want to work, and we encourage you to think about working longer.' Obviously, that's the message, and that's a positive change. More people are working longer.
Q: Age discrimination must be a concern for baby boomers who want to work into their retirement years?
A: Yes. And typically, it's people who are more highly educated, as many boomers are, who want to work longer. It's also true that people no longer can count on a traditional pension, and frankly, they need to work longer because they haven't saved sufficiently to finance their own retirement.
Q: How prevalent is age discrimination these days?
A: Unfortunately, it's still prevalent. There's two indications of that. The first is the caseload at EEOC (Equal Employment Opportunity Commission) of age discrimination complaints. That's a leading indicator. The other is, we do surveys of people in the work force, and we ask, 'Are you aware in your employer that there have been people who have been discriminated against on the basis of age?' And there, the response is usually well above 50 percent that at least some instances of age discrimination is taking place. I think that legislation has eliminated a lot of the most obvious stuff, but it's certainly true that age discrimination continues. It's just been driven more underground.
Q: So it's much more subtle?
A: As in race discrimination, you identify statistically if an employer has had a pattern of negative actions toward older employees versus younger employees. It's not so much as something blatant where the employer actually says, 'You're too old.' It's where you look at their whole range of actions over a period of time, and you can say, there's a pattern here that cannot be explained any other way than by age discrimination.
Q: Isn't the Supreme Court about to look at this issue?
A: Yes. The law has been on the books for 40 years and there are still aspects of it that are not legally clear yet. This one particular case is whether people who do not have the same supervisor can testify as to discrimination toward a fellow employee.
There are still some holes in the act - people who aren't covered, parts of the law that need to be strengthened. But really, the big issue is the fact that age discrimination is still so widespread. While it's harder to prove because it has gone underground, there's plenty of evidence that it's way too pervasive.
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