Age Discrimination

Recent national constitutions—for example, South Africa’s (1997) and Finland’s (2000)—expressly prohibit discrimination on the basis of age, whereas the U.S. Constitution does not. A number of reasonable bases exist for treating persons of different ages differently; thus the Supreme Court does not use a higher standard of strict scrutiny to review claims of age discrimination, as it does for racial discrimination, which is generally forbidden for any reason. Minor children, for one, are not entitled to all of the same rights and privileges as adults. Laws regarding the sale of alcohol beverages and tobacco, issuance of licenses to drive, registration for voting, and eligibility for public office have validly taken age into consideration without running afoul of the Constitution, which itself sets age thresholds for the nation’s top executive officers and legislators. A certain level of experience and maturity is a reasonable prerequisite for engaging in these activities.[Page 24]

Congress has acted to prohibit unjustifiable age discrimination as it has other forms of discrimination as far as federal government spending is concerned. The Age Discrimination Act (1975) bars discrimination on the basis of age under any program that receives federal funding. According to the act, “[n]o 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.” The act does allow for “reasonable factors other than age” as a potential basis for different treatment, even if they “may have a disproportionate effect on persons of different ages.”

Most constitutional cases brought to the Supreme Court alleging age discrimination have centered around the issue of employment. Businesses, for example, once typically required employees to retire at sixty-five years of age, whether or not they wanted to continue working. Extending a provision of Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act (1967) was passed to address this and related problems. It prohibits discrimination against persons who are more than forty years old and applies to both job applicants and employees. “It shall be un-lawful,” states the act, “for an employer…to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age….” Employers are also barred from segregating or classifying employees in such a way as to deprive them of employment opportunities or otherwise adversely affect their status, as well as “to reduce the wage rate of any employee….” Employment agencies and labor organizations are also included in the act’s scope. In 1978 and 1986 amendments eliminated any mandatory retirement age for most workers. The act does allow employers to set reasonable age requirements for retirement in cases where age bears a rational relationship to job qualifications or is necessary for the operation of a business.

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