A U.S. Appeals Court’s Absurd Justification of Age Discrimination

Just in case there is any doubt, a  federal appeals court in New York City ruled last week that age discrimination is entitled to far less protection under the U.S. Constitution than other types of discrimination.

A three-judge panel on the U.S. District Court of Appeals for the 2nd Circuit in New York City ruled that age discrimination “does not offend” the Equal Protection Clause of the U.S. Constitution if it is “rationally related to a legitimate [government] interest. ” They said a law that discriminates on the basis of age  must literally be irrational to be unconstitutional.  By contrast, federal courts accord race and sex discrimination much more exacting strict and intermediate scrutiny, respectively.

The panel cites Kimel  v. Florida Bd. of Regents, an 18-year-old  decision by now retired U.S. Supreme Justice Sandra Day O’Connor, who speculated that age discrimination differs from other types of discrimination because:

  • Older persons have not been subjected to a “history of purposeful unequal treatment” and,
  • “[Old] age also does not define a discrete and insular minority” as the status of old age is one which all persons, regardless or ace or gender, may experience.”

 Justice O’Connor’s statements were outdated and dis-proven in 2000.

Since the 1960s, scores of researchers have equated age discrimination with race and sex discrimination and historians have documented a long history of purposeful unequal treatment of older workers, particularly since the Industrial Revolution forced older workers off the farms and into poor houses.

The U.S. Congress passed the Age Discrimination in Employment Act (ADEA) in 1967 after a study by the U.S. Secretary of Labor found that applicants over 55 years of age were barred from half of all job openings in the private sector. Workers over 45 were barred from a quarter of these jobs, and workers over 65 were barred from almost all of them.

Applicants over age 55 were barred from half of all job openings in the private sector. Coincidence?

in the 1960s, Dr. Robert N. Butler, a psychiatrist and the first director of the National Institute on Aging, said:

Ageism can be seen as a systematic stereotyping of and discrimination against people because they are old, just as racism and sexism accomplish this with skin color and gender . . . ageism [is] manifested in a wide range of phenomena, on both individual and institutional levels—stereotypes and myths, outright disdain and dislike, simple subtle avoidance of contact, and discriminatory practices in housing, employment, and services of all kinds.

Today, there is no dispute (except in legal circles) that all discrimination, including age discrimination, is based on irrational negative stereotypes about the oppressed group, dislike and animus and fear of people who are different from the dominant group.

The appellate panel ‘s decision came in a case involving a blatantly discriminatory program that was put into effect in 2012 through an executive order signed by former President Barack Obama. The Pathways Recent Graduates Program permits federal agencies to hire workers who  graduated within the past two years.  Since 2010, older workers have been barred from applying for 100,000 federal jobs and counting.

The Second Circuit panel upheld the dismissal of a lawsuit brought by Brian J.Neary, 41, who applied for a job  at  the Federal Deposit Insurance Corp.  The panel found that Neary applied for the position in 2009, before the Pathways Program went into effect and therefore lacked standing to sue.

The panel went on to rule that the Pathways program is not literally irrational and therefore does not violate the Equal Protection Clause of the Fifth Amendment. “The government has offered a rational basis for its hiring practices and Neary’s allegations are insufficient to raise an inference that those practices violate equal protection,” the appeal court writes.

And that, folks, is the latest demonstration of  the legalization of age discrimination in America.

The panel included Judges Dennis Jacobs, Richard C. Wesley and Richard K. Eaton – who, it should be noted, have lifetime tenure and thus are insulated from the reality of age discrimination in the workplace.

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