- Judge O’Connell’s lawsuit was dismissed on March 10, 2016 by the Michigan Court of Appeals, which claimed it lacked jurisdiction. The Michigan Supreme Court on March 31, 2016 also declined to consider O’Connell’s appeal.
An attorney for a Michigan judge is quoted as stating the “pernicious practice of age discrimination has, except for judges, been extirpated* from the American work environment.”
Tn fact, age discrimination is deeply embedded in state and federal law and affects millions of older workers who, unlike judges, are effectively driven out of the workplace into low-wage work or an “early retirement” marked by decades of poverty or near poverty. At least judges have decent public pensions.
[Obviously, Detroit Attorney Alan Falk and his client, Michigan Court of Appeals Judge Peter D. O’Connell, have not read my book, Betrayed: The Legalization of Age Discrimination in the Workplace.]
Federal court judges have lifetime tenure but state court judges in many states are not so lucky. O’Connell turns 68 this year and will be booted from the full-time bench as a result of a provision in the Michigan constitution that states: “No person shall be elected or appointed to a judicial office after reaching the age of 70 years.”
State election officials have told O’Connell, who was elected in 1994, that he can secure a place on the ballot this year if he gathers signatures, but he won’t be listed as an incumbent. O’Connell filed a lawsuit with the Michigan Court of Claims in which he seeks to force the state to put his name on the ballot as an incumbent.
O’Connell states that 32 Michigan judges were forced to leave the bench in 2014 because of their age. Typically, state court judges can continue to work but at a far lower rate of pay and without the perks of a full-time office holder.
Falk and O’Connell maintain there are no age limits for any other elected position in Michigan. That may true with respect to “elected” positions but many other jobs in Michigan are subject to mandatory retirement. Under the Age Discrimination in Employment Act, for example, public sector workers, including police and firefighters, can be forced to retire at the age of 55.
In several states, judges have challenged constitutional provisions that require them to leave office at the age of 70. Thus far, none of these challenges have met with success. Two proposals to eliminate mandatory retirement for state court judges in Michigan apparently have stalled in the state legislature.
The U.S. Supreme Court accords age discrimination its lowest level of review, far lower than race or sex discrimination. If a law discriminates on the basis of age, the U.S. Supreme Court will uphold it if it is merely rational – or not irrational. This leaves state judges with no option except to work to amend their state constitutions to repeal mandatory retirement provisions.
There’s apparently little public sympathy for state court judges who express indignation about age discrimination in employment. After all, age discrimination was there all along but they seemed oblivious until it affected them. Worse, many judges make the problem of age discrimination far worse for working folk because they interpret the law in favor of the rich and powerful, including campaign contributors and large state employment law firms.
- Extirpated, by the way, is a fancy work for rooted out and destroyed.