Learned professor comments on Supreme Court’s general Dynamics age discrimination decision
Michael C. Dorf of the Columbia University School of Law writes this in Findlaw: “The Supreme Court’s Recent Ruling that Federal Age Discrimination Law Protects the Old, but not the Young”
Unlike my previous post, Dorf’s criticism is not so much the reliance on legislative history as the failure to adequately consider policy, and he likes the dissent’s result:
Legal scholars have long noted that in close cases, judges typically consider questions of policy as well as technical legal matters, and properly so. Faced with an ambiguous statutory command, courts appropriately ask what makes sense: what resolution of the ambiguity will best serve justice? . . .
Remarkably, however, neither the majority nor the dissent in General Dynamics engaged in any policy analysis whatsoever. Both were content to puzzle over the meaning of the words of the statute, as though this were a purely lexicographical exercise. . . .
How, then, should the Justices have resolved the textual ambiguity in the ADEA? That is a genuinely hard question, but I would side with the result, if not necessarily all of the reasoning, of the dissent.
In explaining what he thought Congress must have meant in proscribing age discrimination, Justice Souter observed that it is a commonplace that we live in a “youth culture.” He’s right, of course. Far from respecting the wisdom and experience of age, our society does stereotype the old as unattractive and unproductive.
But to recognize that the old are frequently the victims of discrimination is not to deny that sometimes the young are the victims of stereotypes as well. Even if age discrimination against the young is less common than age discrimination against the old, when the former happens it may still be invidious.
Moreover, in the Court’s equal protection jurisprudence, one marker for heightened judicial protection is political power. It is a commonplace that the old have vastly more political power than the young, enabling the old to secure proportionately greater funding for programs that benefit themselves than the young are able to obtain for themselves.
Granted, the young aren’t quite what the Court’s equal protection cases call a “discrete and insular minority.” But neither is it outlandish to think that their lack of political power relative to the old calls for some greater judicial solicitude. . . .
Indeed, I have always found it quite unreasonable that the ADEA protects only those over 40, as if there could never be unjustified discrimination against the young.
How about the case of a talented young employee who doesn’t even look his/her age? Don’t employers ever fear putting such a person in charge of supervising much older employees, thinking a man/woman who still looks like a teenager (but in fact is, say, 28) will cause them not to be viewed seriously as an authority figure?
Is this discrimination that ought to be prohibited?
Shouldn’t discrimination laws be construed, if at all plausible given their language, as promoting true equality of opportunity — meaning prohibiting discrimination in either direction? This, of course, is at the heart of debate over affirmative action as well.
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