Pathfinder

Age Discrimination in Employment

I. Introduction

As I think about a career change at age forty-four, I face the prospect of re-entering the work force as a new graduate who will be close to fifty. Age discrimination in the area of employment is a topic of interest to me. Life expectancy has increased throughout this century. People born in 1900 could expect to live to age forty-seven. By 1978 life expectancy had risen to seventy-three years (O'Meara, p. 20). According to the Census Bureau by the year 2050, 21.8 percent of the population will be sixty-five or older (O'Meara, p. 20). This "graying of America" is also occurring in the American work force (O'Meara, p20).

Blacks Law Dictionary 6th Edition, defines discrimination as "the unfair treatment or denial of normal privileges to persons because of their race, age, sex, nationality, or religion. A failure to treat all persons equally where no reasonable distinction can be found between those favored and those not favored." The Wagner Act of 1935 was the first statute that attempted to protect workers in the work place from unfair employment practices. Neither statutory or common law protected older workers. The Equal Employment Opportunity Act of 1962 was the first attempt to specifically prohibit age discrimination in employment. This bill would have prohibited employment discrimination because of age, race, religion, color, national origin or ancestry, however it was blocked in the House Rules Committee. There was another attempt to attach age discrimination to the Civil Rights Act of 1964 but the proposed amendment was voted down. One of the reasons given for the vote was that Congress did not have enough information to legislate age discrimination protection. Congress then directed the Secretary of Labor to study age discrimination in the area of employment. In his report, The Older American Worker: Age Discrimination in Employment, Secretary of Labor Wirtz distinguished between race discrimination and age discrimination. Unlike race discrimination, age discrimination was not based on dislike but rather on "incorrect stereotypes" (O'Meara, p12). Age discrimination was added to the Fair Labor Standards Act, but this was also rejected by the Senate Committee. In 1967 President Johnson proposed that Congress enact a law prohibiting "arbitrary and unjust discrimination in employment because of age" (O'Meara, p14). The Age Discrimination in Employment Act was signed into law by President Johnson on December 15, 1967.

29 U.S.C.S. s 621 Congressional Statement of Findings and Purpose

(a) The Congress hereby finds and declares that -

1. in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs. 2. the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons; 3. the incidence of unemployment especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing; and their employment problems grave; 4. the existence in industries affecting commerce, of arbitrary discrimination in employment because of age, burdens commerce and the free flow of goods in commerce.

(b) It is therefore the purpose of this Act (29 USCS ss 621 et seq.;) to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers fin ways of meeting problems arising from the impact of age on employment. (Dec. 15, 1967, P.L. 90-202, s2, 81 Stat. 602)

II. Legal Information Sources

A. Primary Sources

1. Case Law - Digests

a. In the West products including the West Digests you can search the area of Age Discrimination under Civil Rights, key number 168. Key number 169: Employers and Employees Affected, Territorial Limitation. Key number 170: Discharge , Lay off or Retirement. Key number 171: Public Employment - Schools. Key number 172: Pilots; Airlines and Other Carriers. Age Discrimination is listed in the descriptive word index of the digests.

b. Westlaw. The topic of Age Discrimination can be searched using the above key numbers.

c. Lexis. The topic of Age Discrimination can be searched using Age Discrimination in Employment Act as a search term. A search of GenFed using this term brought up over 1000 cases. A search of Supreme Court cases using this term brought up 46 cases. The first case was O'Gilvie et al V United States, 1996.

2. Statutes - Federal and Texas

a. Federal

1) 29 U.S.C.A. ss 621-634 - Age Discrimination in Employment Act of 1967 (West 1988)

2) 29 U.S.C.A. s 621 - Statement of findings and purpose of the statute. "It is therefore the purpose of the Act (29 U.S.C.A. ss 621 et seq.;) to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of old age.

3. 29 U.S.C.A. s 623 - Prohibition of age discrimination. Narrow exceptions defined in subsection (4)(f).

4. 29 U.S.C.A. s 626 - Recordkeeping, investigation and enforcement.

5. 29 U.S.C.A. s 630 - Statutory definitions.

6. 29 U.S.C.A. s 631 - Age limits. Protects those age 40 and older. Originally the statute applied to individuals up to the age of 65, then 70, and now has no upper age limit.

7. 29 U.S.C.A. s 633a - Rules of nondiscrimination for employment with the Federal Government.

8. 29 U.S.C.A. s 624 - Secretary of Labor Study results provided to the President and the Congress.

9. Older Workers Benefit Protection Act, P. L. No. 101-433, 104 Stat. 978 (1990) (codified at 29 U.S.C.A. SS 621 and notes, 623 and 630)

b. Texas

1) Vernons Texas Statutes and Codes Annotated - General Index. (West 1996) Aged Persons - Discrimination - Employment -- Labor 21.051 et seq.

2) Texas Codes Annotated - Labor , Vol. 1. (West 1966) Section 21.051: An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin or age the employer: 1. fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions or privileges of employment; or 2. limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.

3) Vernons Civil Statutes of the State of Texas Annotated - Labor, Vol. 15. (West 1987, Pocket Part 1997). Labor, Title 83, Article 5221K.

c. States

1) Subject Compilation of State Laws. Nyberg, Cheryl. Carol Boost and Cheryl Nyberg Pub. Twin Falls, ID. 1996. Different volumes of this series cover 1979- 1995.

3. Administrative Law and Regulations

a. Federal

1) 29 C.F.R. s 1625 - Age Discrimination in Employment Act.

2) 29 C.F.R. s 1626 - Age Discrimination in Employment Act procedures

3) 29 C.F.R. s 1627 - Records to be made or kept relating to age, notices to be posted, administrative, exemptions.

b. Texas

1) Official Texas Administrative Code - General Index. (West 1996) Aged Persons - Discrimination - Labor and Employment -- 40 s 321.1 et seq.

B. Secondary Sources

1. Legal Encyclopedias

a. American Jurisprudence 2d.. Lawyers Cooperative Publishing Co. Civil Rights, Volume 15 - Age Discrimination: sections 226-242.

b. Corpus Juris Secundum. West Publishing Co. Civil Rights, Volume 14A - Age Discrimination: sections 182-200.

c. Texas Jurisprudence III - General Index A-D. Lawyers Cooperative Publishing Co.

1) Age Discrimination in Employment Act - Civil Rights s 22

2) Age Discrimination - Employment (generally) - Civil Rights ss 22, 57, 58, 65 Employers and Employees ss 5, 8

3) General Discussion - Constitutional Law s 224

2. Loose-leaf Services

a. Legal Loose-Leafs in Print. Eis, Arlene L., Ed. Infosources Publishing. Teaneck, NJ. 1996. Provides listings of loose-leaf services for a wide variety of legal topics.

b. Employment Discrimination. Larson, Arthur. Matthew Bender & Co. New York, NY. 1975. Age discrimination as a subject topic is not listed in the table of contents for this five volume loose-leaf set. But there is an additional volume called the "Temporary Transfer Binder". In this volume under the heading T98 is a large section on the Age Discrimination in Employment Act.

c. Age Discrimination. Eglet, Howard. Shepards/McGraw Hill. New York, NY. 1995. Tries to make sense of the law in a large three volume set. Very detailed with the ability to updated. Each volume is over 400 pages.

d. Age Discrimination: Critical Issues and Proofs. Lawyers Cooperative Publishing. Rochester, NY. 1992.

e. Employment Discrimination. Institute for Continuing Legal Education. Springfield, IL. 1995.

f. Employment Discrimination. Cox, Paul N. Michie Butterworth. Charlottesville, VA. 1993.

g. Employment Discrimination Law and Litigation. Rossein, Merrick T. Clark, Boardman and Callaghan. Deerfield, IL. 1990.

h. Employment Discrimination Law Update Manual. National Employment Law Institute. Larkspur, CA. 1995.

I. The Law of Employment Discrimination. Cox, Paul. Lupus Publications. Sterling Heights, MI. 1994.

j. Litigating Age Discrimination Cases. Ruzicho, Andrew J. Clark, Boardman and Callaghan. Deerfield, IL. 1986.

k. Manual on Employment Discrimination and Civil rights Actions in the Federal Courts. Richey, Charles R. Clark, Boardman and Callaghan. Deerfield, IL. 1994.

l. Employment Discrimination Coordinator. Clark, Boardman and Callaghan. Deerfield, IL. 1995. This service is a detailed collection of relevant cases, statutes and other material relating to employment discrimination. It is helpful for attorneys and is updated annually.

3. Annotated Law Reports

In the index to the ALR Digest to the 3d , 4th, 5th, Fed and the L. ED 2d volumes there are eight pages of topics under Age Discrimination. In the section of entries titles "Employment" is the entry for 58 ALR Fed 94, "evidence that discharge was because of age, for purposes of Age Discrimination In Employment Act. (29 U.S.C.S. ss 621 et seq.) Lawyers Cooperative Publishing Co. Rochester, NY.

4. Legislative Histories

a. U. S. Code Congressional and Administrative News, 90th Congress 1967 (2). Legislative History, Proclamations, Executive Orders, Reorganization Plans, Index and Tables. West Publishing Company. St. Paul, MN. This volume details the legislative history of the Age Discrimination in Employment Act.

b. Sources of Compiled Legislative Histories. Johnson, Nancy P. American Association of Law Libraries. Littleton, CO. 1979. This book is a bibliography of government documents, periodicals, articles and books. The legislative histories span the 1st Congress to the 94th Congress. I did not find this to be a very useful or timely book. There were only four entries under P.L. 90-202, The Age Discrimination in Employment Act.

5. Treatises, Hornbooks and Monographs

a. Employment Practice Decisions. CCH. Chicago, IL. 1978. Volumes provide the full official texts of leading Federal and State court decisions on questions of employment practices. There is a cumulative index in the back of each volume. Age discrimination is in Volume 56. There is a table of cases in the front of each volume.

b. Fair Employment Practice Cases. BNA. Washington, DC. 1994. Full text of actual cases. There is a cumulative digest, index and table of cases. There are classification numbers that refer to points of law. The classification numbers are found through the topic finders. The classification number for Age Discrimination is 106.13.

c. Federal Age Discrimination in Employment Act: Slowing down the Gold Watch. Edelman, Charles. Michie Co. Charlottesville, NC. 1978. Review of the history of the statute and attempts to challenge it. This book attempts to provide practicing attorneys with a complete statement of the law as it has developed since 1967.

d. Age Discrimination in Employment Law. Kalet, Joseph E. BNA. Washington, DC, 1986. Information on available case law and regulations through 1985. Includes a legislative history section, coverage by the ADEA, remedies and enforcement procedures.

e. Age Discrimination in Employment. Kendig, William. AMACOM (Div. of the American Management Association). New York, NY. 1978. This small book has a business thrust. It is like a handout designed to alert managers and employers to the presence of ADEA. Includes a brief overview of the problem, the legislation and the major court actions.

f. Federal Law of Employment Discrimination in a Nutshell. West Publishing Co. St. Paul, MN. 1992. Chapter 16 covers Age Discrimination and the Age Discrimination in Employment Act.

g. Protecting the Growing Number of Older Workers: The Age Discrimination in Employment Act. O'Meara, Daniel. The Wharton School, University of Pennsylvania. Philadelphia, PA. 1989. This is an excellent overview of the ADEA and how it came to be.

6. Law Journals and Newsletters

a. Law Books and Serials in Print. R. R. Bowker/Martindale Hubbell. NJ. 1995 A listing of available law books and serials. In the subject index there is an entry for "Age Discrimination in Employment - Law and Legislation" There is also an entry for "Age (law)" and for "Age and Employment". Entries total approximately one column.

b. Employee Relations Law Journal. Executive Enterprises, Inc. New York, NY. Designed to make an employer or manager aware of EEO problems.

c. Labor Law Journal. CCH. Chicago, IL.

d. Business Lawyer. ABA - Business Law Section. Chicago, IL. Covers business and financial law with articles on current legal topics.

e. The Elder Law Journal. University of Illinois. Urbana, IL. I chose this journal and the Labor Law Journal because of the large number of relevant articles I was published in the journals while I looked through Age Discrimination articles in InfoTrac.

f. Legal Newsletters in Print. Eis, Arlene, Ed. Infosources Publishing. Teaneck, NJ. 1995. This book details available newsletters covering a variety of legal topics. Some newsletters applicable to the topic of Age Discrimination follow:

g. EEO Review. John Wiley & Sons. New York, NY.

h. Labor and Employment Law Newsletter. Matthew Bender & Co. New York, NY.

I. Labor Law Reports. CCH. Chicago, IL.

7. Articles

a. Current Law Index. Information Access Co. Foster City, CA. 1995. In the subject index there is a subject heading for Age Discrimination. Under this heading subheadings include: Cases, Comparative Method, Forecasts, Laws & Regulations and Litigation.

b. InfoTrac. Information Access Co. Foster City, CA. Articles in InfoTrac are current through 1996.

c. Molly Glennen, Annotated Bibliography: Age Discrimination and Early Retirement, 44 Kan. L. Rev. 807 (1996).

d. George D. Mesritz, Update on Recent Trends in the Law: The Age Discrimination in Employment Act, Employee Relations L.J., Summer 1995 at 107.

e. George Rutherglen, From Race to Age: the Expanding Scope of Employment Discrimination Law, 24 J. Legal Stud. 491 (1995)

8. Databases

a. Westlaw. West Publishing Co. St. Paul, MN. See A.1.b. this paper.

b. Lexis/Nexis. Reed Elsevier plc group. New York, NY. See A.1.c. this paper.

c. Dialog - File 150: Legal Resource Index.

d. Directory of Law Related CD-ROMs. Eis, Arlene, ED. Infosources Publishing. Teaneck, NJ. 1996. The CD-ROMs available are arranged in alphabetical order but the is a subject index. Following are some CD-ROM products applicable to the topic of Age Discrimination.

e. Search Master Employment Law Library. Matthew Bender & Co., Inc. Albany, NY. Allows a subscriber to search, retrieve and browse the full-text of 18 Bender titles including Employment Discrimination, Employee Rights and Employer Obligations, and New York Employment Discrimination Handbook.

f. LRP's Federal Employment Library on CD-ROM. LRP Publications. Horsham, PA. Full text of Equal Employment Opportunity Commission and Court Decisions (1971-).

g. Human Resources Management on CD-ROM. CCH. Chicago, IL. Full-text of CCH Human Resources Management loose-leaf service. Contains units on Equal Employment Opportunity compliance. Includes biweekly "Ideas and Trends" newsletter and optional access to CCH on-line database.

h. Employment PowerLink. Clark, Boardman and Callaghan. Deerfield, IL. Entire contents of Employment Coordinator with hypertext links between major topics and finding aids. Table of cases, statutes and regulations link directly into text. Includes full Federal and State Coverage.

III. Other Information Sources

A. Organizations

1. National Institute on Age, Work and Retirement. National Council on Aging. Washington, DC. Started in 1968, budget of approximately one million dollars annually. Advises corporations on employment practices and retirement planning among other things.

IV. Interdisciplinary Information Sources

A. Books

1. Books in Print. RR Bowker. New Providence, NJ. 1993-1994. Volume 1 - Age Discrimination in Employment.

2. Old and Obsolete: Age Discrimination and the American Worker. Garland Publishing. New York, NY. 1992. This book discusses the history of age discrimination in employment law and legislation.

B. Articles

1. Business Periodical Index. H. W. Wilson. New York, NY. There are two applicable entries in BPI, "Age Discrimination in Employment" and "Age Discrimination in Employment Act of 1967". The article are primarily business related.

2. Readers Guide. H. W. Wilson. New York, NY. This is the Silver Platter product. Under age discrimination there were 79 hits and "Age Discrimination in Employment" is a descriptor in the database.

3. Ann Munroe, Getting Rid of the Gray: Will Age Discrimination be the Downfall of Downsizing. Mother Jones, July-August 1996 at 29.

4. Linda Greehouse, Justices Say Age Bias Can Occur Even When One Over Forty Worker Replaces Another , New York Times, August 2, 1996 at A14.

5. Pamela Kruger, Face Value: Women Having Plastic Surgery Because of Employee Discrimination, Working Woman, July 19, 1994 at 54.

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