From Race to Age: The Expanding Scope of Employment Discrimination Law
The Age Discrimination in Employment Act (ADEA) goes beyond the model of racial discrimination in prohibiting discrimination on a ground not recognized in the Constitution. As a consequence, the individuals protected by the ADEA differ sharply from those protected by earlier statutes such as Title VII of the Civil Rights Act of 1964. An examination of empirical data reveals that claims under the ADEA are brought predominantly by white males who hold relatively high-status and high-paying jobs. These claims mainly allege discriminatory discharge and result in recovery of money judgments several times higher than other claims of employment discrimination. As a whole, claims under the ADEA more closely resemble claims for wrongful discharge than other claims of employment discrimination. It follows that the ADEA cannot be justified, either doctrinally or empirically, because it protects a disfavored and relatively powerless minority group from discrimination.