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Age closes doors. It severely limits the range of employment options available to the older worker. An older worker may reach the highest point in her career and feel she has more to offer her employer than at any previous time in her life and yet find that her age presents a formidable barrier to any further advancement. The position to which she may aspire will more likely be awarded to a much younger person lacking the experience and, probably, the enthusiasm and dedication of the older worker. The younger worker has only her youth to recommend her, but that will prove more than sufficient. She will be awarded the promotion, while the older woman will remain in her present position. A year later the older worker may be downsized or forced into retirement on some pretext. Her chances then of finding another position are practically nil, and she will remain in retirement, like it or not.
Until the 1950s, age bias occurring in the workplace was not a matter addressed by the laws of most states, and it was not until 1967 that Congress recognized that ageism was outdated and irreconcilable with civilized society and American cultural values. In that year, Congress passed and President Lyndon B. Johnson signed into law the Age Discrimination in Employment Act (ADEA).1 Simply stated, the new law encouraged Americans to refrain from the adverse treatment of older workers—then defined as workers falling into the age group forty to sixty-five—and made it unlawful for an employer to permit a worker’s age to influence employment decisions.
In enacting the ADEA, Congress and the president reacted to rampant age discrimination in the workplace, then perceived as a national disgrace. The Congressional Record reflects the view prevalent at the time that employer insistence upon compulsory retirement of older workers—the opposition to which was one of the driving forces behind enactment of the statute— was simply outdated and inconsistent with the viewpoint of Americans in general:
The view that a man or a woman is so old at 65 as to warrant compulsory retirement from industry stems from an era before the turn of the century and comes to us from a period when life expectancy was about half of the life expectancy of Americans . . . at the present time. . . . In fact, today they are not as old at 65 in thought, action, physical and mental ability as men and women . . . were at the age of 40 in the 1880s. Yet, for some reason or other, we Americans have adhered to this view of 65 being the proper age for retirement notwithstanding the fact that this concept is today as outdated and outmoded as are flint-lock muskets and candle dips of the 18th century.2
Congress intended the ADEA to end compulsory retirement and eradicate other age-related acts affecting the employment relationship. The ADEA has failed to fulfill this role, since to this day discrimination against older workers remains a national disgrace. The methods used to discriminate have changed; the results have not. Downsizing and early retirement plans eliminate older workers from the workplace with the same dispatch as coerced retirements and massive layoffs formerly accomplished. Reemployment is not a likely prospect for the older worker who has been downsized or forced into early retirement. Any unemployed person attempting reentry into the labor market does so from a weakened position, because the stigma of dismissal, whatever the circumstances, remains a negative force militating against a return to the workplace. Surmounting this obstacle, however, is far more difficult for the older worker. Today, a man in his fifties who loses his job faces lifestyle changes of calamitous proportions. For a woman, the calamity may occur when she reaches her late forties, and sometimes even earlier. The older the terminated worker, the more likely he or she will remain unemployed, and thus the discharge of an older worker is fittingly described as the “industrial equivalent of capital punishment.”3 The fate of the terminated older worker is so well documented that one wonders how an employer, in good conscience, can terminate an older worker without first fully exploring every conceivable alternative to dismissal. Morally, it has been argued, the longer a worker remains with an employer, the greater the loyalty owed to that worker by the employer. As a worker grows older, with each passing year he becomes less employable elsewhere. Therefore, as the term of the employment relationship lengthens, the employer’s moral commitment to the worker increases. As Willie Loman says in Death of a Salesman, “You can’t eat the orange and throw away the peel—a man is not a piece of fruit.” Under the law, however, the employer is not bound to any such commitment. Rather, the employment-at-will doctrine allows the employer to fire an employee regardless of length of service without violating the law.
The general acceptance of the employment-at-will doctrine in this country places the United States virtually alone among Western industrialized nations in failing to provide workers with protection against unjust discharge. A classic statement of the doctrine was made by the Tennessee Supreme Court more than one hundred years ago in an 1884 decision: “All may dismiss their employees at will, be they few or many, for good cause, for no cause, or even for cause morally wrong, without being thereby guilty of legal wrong.”4
Most Americans believe it is morally indefensible for an employer to fire a long-term older worker without reason. Consequently, most states have adopted some legislative and judicially created limitations to the employment-at-will doctrine, but nevertheless to this day the doctrine is generally applicable across the country. Unless you work in Montana—whose statute prohibits employers from discharging employees without good cause5 —the law of the state in which you work will afford you little or no protection against your employer if you are fired, even if you have done nothing to warrant dismissal. Except for union and civil service employees, “wrongful discharge” has little or no meaning for the worker. Nearly all union-management collective bargaining agreements and state and municipal civil service laws and rules prohibit dismissal of an employee without good cause. However, if you are not a union, state, or municipal employee, and you do not have a contract of employment for a specified period of time, your employer may fire you at any time for a good reason, a bad reason, or no reason at all, and you generally have no recourse against your employer unless your discharge constitutes a discriminatory act under federal or state law.
Regardless of the circumstances, dismissed workers rarely admit that their terminations are justifiable, and they frequently seek legal remedies for what they perceive to be unlawful acts on the part of their employers. They soon learn, however, that the employment-at-will doctrine does not provide them with a legal remedy. They then turn to the discrimination statutes, and here, some workers find a source for hope. If a worker is able to prove that his discharge was based upon or motivated by his race, color, sex, national origin, religion, disability, or age, he may recover monetary damages or attain other forms of relief against his employer. He may even be able to force his employer to rehire him. But probably fewer than one in ten of those dismissed are able to garner evidence of discrimination sufficient to file a claim against his or her employer. Nonetheless, in the past twenty years, federal and state courts, the Equal Employment Opportunity Commission (EEOC), and various state fair employment- practices agencies have been inundated with employment discrimination cases. Between 1970 and 1989, the number of filings of employment discrimination cases in the federal courts increased almost 2,200 percent, while all other types of cases rose 125 percent. Not least among these job discrimination cases were those advancing allegations of age discrimination. While the number of race, sex, and other discrimination cases is not expected to rise significantly in the near term, a massive increase in age cases appears to be on the horizon.
As our population grows older—as it is now doing—the incidence of acts of age discrimination inevitably will rise. More than eighty million Americans now living were born during the two decades following World War II. The baby-boomer generation, far more numerous than any generation either preceding or following it, will be the largest constituent of a population growing increasingly older over the next twenty-five to thirty years.6 The oldest baby boomers—those who turned fifty in 1996—will be fifty-five in 2001 and sixty-five in 2011. Even before the boomer generation reached middle age, the populace was growing older. By 1983, the number of Americans over sixty-five exceeded all the teenagers in the country, and it is estimated that by 2025, Americans over sixty-five will outnumber teenagers by a two-to-one margin.7 Emphasis on better health care, diet, and lifestyle has increased life expectancy from age forty-nine in 1900 to age seventy-six today. Americans now reaching their sixty-fifth birthday can reasonably expect to live into their eighties. The number of Americans age seventy-five and older has also grown swiftly, from ten million in 1980 to nearly fifteen million in 1998.8