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 Justice O’Connor’s statements were outdated and dis-proven in 2000.

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OPM Dismisses Complaint about OPM’s Discriminatory Hiring Program

The U.S. Office of Personnel Management (OPM) has dismissed a complaint filed by a New York man who was barred from applying for a federal job in 2017 because he had not graduated from college within the past two years.

Kathleen M. MGettigan, then acting director of the OPM,  stated in a 3/7/18 letter to the complainant, Brian Neary, that the OPM lacks jurisdiction “over the legality” of the Pathway’s Recent Graduates Program because it was the result of an executive order by former President Barack H. Obama.

The OPM program is an example of  systemic and institutionalized age discrimination in hiring.

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