AGE DISCRIMINATION

Age discrimination occurs when individuals are treated differently because of their chronological age. Children and youth are routinely treated differently than adults. They are required by law to attend school and denied the legal right to vote, drink alcohol, and work. This type of age discrimination is justified because of children's immaturity. Although people debate the chronological age that should be used to define adult status, few question the desirability of treating children differently than adults. Chronological age also is used to discriminate in favor of older people. Old age often entitles people to reduced taxes and discounts on drugs, admission fees, or bus and airline tickets. Medicare provides older people with national health insurance and Supplemental Social Security provides a guaranteed minimum income for older people. Discussions of age discrimination, however, seldom focus on the restrictions of children's rights or special privileges for older people. Rather, the primary concern of age discrimination involves situations where older people are treated in unfair and negative ways because of their advanced age. The following discussion focuses on the two most widely recognized areas of discrimination against the old—in employment and health care—but also addresses discrimination in driving laws and interpersonal interactions.

Employment and the ADEA

In 1967, three years after it enacted the Civil Rights Act prohibiting workplace discrimination on the basis of race, color, national origin, religion, or sex, the U.S. Congress passed the Age Discrimination in Employment Act (ADEA). This law and its amendments made it unlawful for employers of more than twenty workers to discriminate against a person past age forty because of his/her age. The ADEA of 1967 protected employees between ages forty and sixty-five against workplace discrimination in such areas as hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. The Department of Labor initially enforced the law, but in 1978 enforcement authority was transferred to the Equal Employment Opportunities Commission (EEOC), the agency responsible for overseeing other federal laws against discrimination in the workplace. The 1978 ADEA amendment prohibited mandatory retirement or other forms of age discrimination before age seventy (instead of sixty-five). The rather obvious illogic of allowing discrimination at chronological age seventy but not at sixty-nine was corrected in 1986 when ADEA was extended to cover all ages past forty. Several occupation-specific exceptions to the ADEA protection are permitted, so that commercial airline pilots, air-traffic controllers, and public safety officers may be required to retire at set ages (fifty-five or sixty). Despite a court challenge by pilots, the Supreme Court in 1998 left intact the Federal Aviation Administration regulation requiring retirement at age sixty. In 1990, Congress again amended the ADEA with passage of The Older Workers Benefit Protection Act (OWBPA). This legislation addressed concerns that businesses were subtly practicing age discrimination by offering early retirement incentive programs (ERIPs) to entice older, high salary workers to leave voluntarily. The OWBPA set conditions that ERIPs must meet to avoid being challenged as age discriminatory and established minimum standards that employers must meet to request that employees voluntarily agree to waive their rights or claims under the ADEA.

The ADEA legislation responded to employers' rampant and blatant discrimination against older people. Before this legislation it was common for employers to include age restrictions in help wanted advertising (e.g., soliciting applicants under thirty-five) and to require workers to retire at a fixed chronological age (e.g., sixty-five). Passage of a law forbidding discrimination on the basis of age, however, has not eliminated age discrimination. To be sure, age discrimination now tends to be less overt than it was before the ADEA. Nevertheless, throughout the 1990s an average of more than fifteen thousand charges of age discrimination were filed annually with the EEOC. The actual number of instances of age discrimination, however, is estimated to be many times larger. Although employers routinely favor hiring younger applicants over older ones (past age forty), formal charges of this type of discrimination are uncommon. Furthermore, approximately 90 percent of all age discrimination charges are settled before official complaints are filed.

The starting point for an individual who believes that his or her employment rights have been violated is to file a charge of discrimination with the EEOC (or with a state fair employment practices agency if a state age discrimination law exists). Until a charge has been filed with the EEOC, a private lawsuit charging violation of rights granted by the ADEA cannot be filed in court. Once filed, the EEOC can handle age discrimination charges in a number of ways: it can provide mediation, seek to settle the charges if both parties agree, investigate a charge and dismiss it, or investigate and establish that discrimination did occur. When it establishes that discrimination occurred, the EEOC will attempt conciliation with the employer to remedy the situation. If unable to conciliate the case successfully, the EEOC has the option of bringing suit in federal court or of closing the case and giving the charging party the option of filing a lawsuit on his or her own behalf.

Because enforcement of the ADEA raises many complicated issues, a number of court decisions have tried to define its reach. A complete history of legal battles cannot be given here, but two Supreme Court rulings illustrate the types of issues that arise. First, the Supreme Court decision in January 2000 in Kimel v. Florida Board of Regents dealt with the constitutional issue of whether or not the federal legislation applied to state governments. Kimel had charged that Florida State University violated the ADEA by discriminating against older workers in making pay adjustments. The Supreme Court ruled that the ADEA did not apply to state government employees, so Kimel could not sue the state in federal court. A few months later, in June 2000, the Supreme Court decision in Roger Reeves v. Sanderson Plumbing Products, Inc. established that direct evidence of intention to discriminate was not required to convict an employer of age discrimination. The Court held that it is adequate to establish that the employer's stated reason for the action was untrue and that prima facie evidence, such as managers' ageist comments, suggest discrimination. The first ruling restricted the reach of the ADEA, but the second one made it easier for employees to win discrimination cases against their employers.

The occurrence of age discrimination in the workplace depends both on the demand for labor in the marketplace and employers' perceptions of older people's competence. A tight labor market, for example, discourages employers from practicing age discrimination. Several studies have examined management attitudes toward older workers. An AARP-funded survey interviewed senior human resource executives in four hundred companies in 1989, and Louis Harris and Associates interviewed over four hundred senior human resource managers in a 1992 survey. Both of these studies, as well as earlier ones, found that despite generally positive attitudes expressed toward older workers by the "gatekeepers" of employment, two areas of concern were widespread. First, there was a pervasive perception that older workers were more costly because of health care, pensions, and other fringe benefits. The perceived and real costs of providing benefits can serve as an economic incentive to discriminate against older workers. Second, there was a widespread perception of older workers as less flexible, less technically competent, and less suitable for training. Studies of older workers tend to refute the stereotypical view that they are less productive than younger workers. Although some physical and mental capacities decline with age (e.g., speed and reaction time), these changes tend to be small until advanced ages and may be compensated for by greater experience. At every age there is wide diversity of abilities and learning potential, so basing employment decisions on job-related criteria rather than arbitrary and misconceived notions about age is a fairer and more efficient use of people's skills.

Since the 1960s much effort has gone into protecting older workers' rights. Despite the failure of this legislation and litigation to end all unfair treatment of older people in the workplace, this issue has received far more attention in the United States than in Japan and most European countries where blatant age discrimination in employment is still accepted.

Older patients in the health care system

In the world of medicine, older people are routinely treated differently than younger people. Older patients tend to receive less aggressive medical treatment than younger patients with the same symptoms. A 1996 study, for example, found that older women are less likely to receive radiation and chemotherapy after breast cancer surgery, even though they are more likely than younger women to die from the disease. In 1997 the U.S. General Accounting Office reported to Congress that most of the Medicare beneficiaries diagnosed with diabetes are not receiving the recommended blood tests, physical exams, and other screening services to monitor the disease. Although anticlotting therapy has been shown to reduce the risk of death among heart attack patients, older patients are less likely than younger patients to receive this treatment. Patients over age seventy-five are more likely than younger patients with the same severity of illness to have donot-resuscitate orders in intensive care units. Older patients are also undertreated for mental health services, preventive care, rehabilitative services, and primary care.

Several factors contribute to the discrimination older people face in the health care system. First, many health professionals adhere to the traditional view of aging as a continual process of decline. Unaware of the distinction between processes of normal aging and disease, they frequently dismiss older patients' complaints and symptoms. Physicians, for example, may write off older adults' symptoms of depression as part of the normal aging process and therefore fail to refer them for psychiatric assessments. Furthermore, doctors often prefer using their skills to cure acute illnesses rather than managing chronic diseases and rehabilitation. Because chronic conditions are much more common among the old than the young, physicians trained to focus on discrete causes of diseases and their cures may ignore the opportunity to intervene and improve older patients' quality of life.

Robert Butler has criticized the medical profession for not investing more research into the chronic diseases of older persons. Chronic conditions that slowly and permanently reduce older people's physical functioning may be less spectacular than acute conditions, but they are more far-reaching than the diseases that have been more intensively researched. Older adults have been poorly represented in other medical research and funding priorities as well. Few research studies, for example, definitively show that specific treatments are beneficial to older patients. Without the empirical evidence of treatments' effectiveness on older adults, physicians may not prescribe certain interventions.

Poor communication between patient and doctor is another contributor to the undertreatment of older adults. Research has shown that doctors are more responsive, egalitarian, patient, respectful, and optimistic with younger patients than with older patients. Communication problems also arise because older patients are more likely to be passive and accept their physicians' diagnoses without question.

Finally, educational institutions contribute to biases against older people in the health care system. Although treating the elderly, especially the very old, can be remarkably different from treating younger patients, medical students are rarely trained to handle the multiple and complex medical problems of older adults. One study, for example, found that the average physician's knowledge of aging was equivalent to that of college undergraduates (West and Levy). As a result, there is a critical shortage of geriatricians, or doctors specially trained to deal with older adults' unique health problems. Further, textbooks that focus almost exclusively on problems of aging and underreport successes expose students to narrow views of the aging process.

The aging of the population will likely compound these problems in the coming decades as the numbers of people needing acute and long-term care increase dramatically. Older Americans comprise less than 13 percent of the U.S. population but account for about one-third of health care expenditures every year. One of the central questions facing the United States is how the health care system will handle a growing elderly population. One proposal addressing this challenge would limit health care provided to people above a certain age. Philosopher Daniel Callahan, for example, argued in his controversial 1987 book Setting Limits that the very old should not receive expensive health care services. Former Colorado governor Richard Lamm went even further in his oft-quoted statement that older persons "have a duty to die and get out of the way." Although few Americans would withhold health care to someone solely on the basis of age, there are many supporters of preferentially allocating medical services to younger patients. They view health care as a limited resource that must be allocated to achieve the greatest good for the greatest number of people. Proponents of age-based rationing argue that chronological age is an ethical, objective, and cost-effective criterion for allocating health care because older people have already enjoyed life and have less life to enjoy. The greatest challenge to age-based rationing of health care, however, is that there is no necessary correlation between age and physical health. Everyone does not age at the same rate, making age-based rationing of health care a prime example of discrimination against older adults.

Older drivers

Age discrimination is also evident in attempts to restrict older adults' driving. Although most older people are safe drivers, elderly persons are involved in more fatal crashes per miles driven than all but the youngest, most inexperienced drivers. Drivers eighty-five or over are more than ten times as likely to die in a crash than are drivers between the age of forty to forty-nine. Over the next several decades the number of older drivers is expected to double and the number of elderly traffic fatalities is predicted to triple. Concern that older drivers pose a risk to themselves and others leads some politicians to propose ending driving privileges at a set age, such as seventy-five or eighty-five. More common, however, are proposals to treat the licensing of older drivers differently. At least twelve states and the District of Columbia already do this, requiring older drivers to have more frequent vision tests and license renewals. A 1999 Missouri law uses ability rather than age to identify those who are at high risk of being involved in accidents. This law has drawn wide support because it acknowledges that using chronological age to restrict people's options ignores the diversity of older people's individual capabilities.

Interpersonal interactions and social segregation

Many older adults experience subtle forms of age discrimination when they interact with others. Older people in American culture are often devalued, avoided, and excluded from everyday activities. They may be segregated from children and younger adults and overlooked as candidates for useful work, either paid or unpaid. The role losses that typically accompany old age reduce older adults' social contacts and recognition. Older persons, for example, are sometimes excluded from family conversations or addressed in a patronizing manner. Religious institutions worried about attracting young people often neglect older members' needs. Churches and synagogues rarely structure their programs, budgets, and services to permit all age groups to participate equally. Older adults are also spatially segregated from other age groups in nursing homes and retirement communities. Even organizations that attempt to counter older adults' social rejection further serve to isolate them in seniors' centers and clubs. Thus, age discrimination functions not only blatantly in employment, health care, and driving laws, but also subtly in interpersonal relationships.

Conclusion

Prejudice and stereotyping lead to age discrimination that can affect everyone. It disadvantages older workers, resulting in an ineffective use of human resources. Ageist beliefs influence health care providers' professional training and service delivery, which in turn negatively affect older patients' treatment and health outcomes. Narrow views of aging lead people to ignore substantial differences among older adults' driving abilities and to underappreciate their social needs. Ongoing education is needed to inform those in power that age is a poor predictor of performance and ability and should not be a basis of discrimination.

PETER UHLENBURG JENIFER HAMIL-LUKER

See also AGE-BASED RATIONING OF HEALTH CARE; AGEISM; AGE INTEGRATION AND AGE SEGREGATION; DRIVING ABILITY; JOB PERFORMANCE.

BIBLIOGRAPHY

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