For some reason my reply button for responding to comments does not work. So I am replying here to comments received from Mark and Tim to a previous blog.
In response to Tim, my powers of prediction were based more on history than on moral hopelessness. For some reason, the courts have consistently drawn a distinction between age and other forms of discrimination. Given the only protected class I fall into is age, this does upset me some, but nevertheless it exists. So I do not believe it has anything to do with laissez-faire doctrine or Reagan, it has do do with the courts consistently drawing a distinction between theories of age discrmination and for example sex and race discrimination. Is this distinction based on any science? Harvey Sterns and I point out in our chapter on the law and age that there does not appear to be any theoretical or scientific basis for this distinction. Of course, we have not really conducted research on the difference in theories in this realm, so perhaps it is we psychologists who are at fault.
I would add that most people do seem to believe that a company should take age into account in making personnel decisions. See for example our emphasis on workforce and succession planning. But that is another issue.
As for Mark’s comments, I would not be the first to point out that the so-called balancing of burdens of proof is more of a legal theory than a courtroom reality. the burden is more of a subtle weighing carried out in the processing of information than a matter of one team being the offense until the punt (to poorly use a football analogy).
Anytime a factory closes, there is a tremendous social cost. The question then becomes one of how, if at all, should we compensate those hard working individuals who suffer as a result of the changing fates associated with capitalism. In the US, our solution has been to let them sue, often arguing that they were terminated as a result of discrimination if they belong to some protected class. I think this is the issue Mark is addressing, is this then the best use of the courts? Is this the best method of determining who should be compensated and how much they should receive?
{ 6 comments… read them below or add one }
Perhaps the reason why the courts tend to behave differently when it comes to age discrimination, as opposed to other sorts, is because of the implicit or tacit association between advancing age and competence, which does not exist for other types of discrimination.
It is possible to argue that a male bathroom attendant can perform the tasks required of a bathroom attendant but is unsuited to perform those tasks in a women’s washroom. It is possible to argue that one possesses the qualifications to do an office job but the employer didn’t like effeminate men and decided not to hire you on that basis alone. Neither of those attributes is going to change in you. Age-ness, however, is not the same as gender, orientation, or race in some very important ways. In the case of age, I can argue until I’m blue in the face that I am capable of doing the job *now*, but the employer can come back with “Well what about in 2 years from now? What assurances do I have that you’ll still be able to do it then?”, and my answer will be “You don’t.” The facts of the matter are that I *will* become older, every single bloody day, but I will not become gayer, blacker, more female, or whatever. And that, to my mind, evokes a different approach to reasoning about it. Put another way, discriminatory actions taken on the basis of age, are often, if not always, prospective in nature, while many other forms of discrimination are essentially immediate or retrospective.
Does that make sense?
Dennis, I don’t question for a moment your assessment of the historical legal treatment of age vs other protected classes. Hey, this is what you teach and well know. But, when you seem to categorically deny the influence of political ideology in this ruling I have to wonder about your bias, whether academic or political.
Wake up and smell the political coffee. It was a 5-4 ruling. If one of the right-wing, pro-business, anti-worker justices were replaced with a left wing liberal justice this ruling would not have happened. Four of the justices, in dissent, did not agree with your historical rationale for this majority ruling. This court is beginning to establish a record of similar rulings. Let’s see if this court awards freedom of speech to corporations (allowing limitless financial domination of our politics). With moral hopelessness and great chagrin I predict they will (again 5-4).
And, clearly, the resurgance of pro-business, free market, laissez-faire, anti-union/worker politics can be credited to Reagan noted for deregulation and union busting. Certainly, under Clinton and a pro-Reagan ideology Republican majority congress further deregulation which made the devastating derivatives (responsible for much of our current recession) legal again did occur. But, the ideological/political groundwork for these decisions and the current court make-up was laid with Reagan and carried through Bush 2 where the critical court appointments (to weight the court with conservatives) were made.
Sorry Dennis, I can’t buy your apolitical argument for this ruling.
Mark – you make a good point, but I gotta think that a substantial portion of the discrimination is still due to immediate negative characteristics associated with being older (e.g., less technologically savvy, more set in their ways, less open to new ideas), similar to biases that are associated with, say, gender or race.
Oh the stereotypes are real and commonplace, for sure. What I have long found intriguing is the tacit link that has evolved over time, and that many make, between pensionable age and competence. The irony is that when Bismarck introduced the very first public pension to citizens of Germany in 1889, the pensionable age was set on the basis of what the state could afford to pay out, based on how many people beyond a certain age were alive. It was an election bribe, plain and simple (and Bismarck won). It started out at 70, and eventually dropped to 65 by the turn of the century because it was fiscally feasible. In due time, it became the de facto European standard, because you couldn’t get elected by setting it higher, and age demographics meant you couldn’t set it lower, so 65 it was. Even so, the working assumption was that one would continue working for one’s livelihood, and the pension was simply a topping up or bonus. It wasn’t until the rise of the labour movement in the early 20th century that forced retirement was put on the bargaining table by unions, partly as a way to bring new members into the unions, eventually nudging many governments towards providing pensions that were replacements for income earned for services rendered. This is how the US pension came to be called “social security”; i.e., if one was forcibly bumped from employment in later life, the pension would provide a net to land in.
Over time, the transition between working-but-also-receiving-a-pension to used-to-be-working-and-now-receiving-a-pension seems to have fostered a pervasive societal notion that pensionable age was, and remains, set on the basis of some known, and defensible, demarcation between when one is good employment material and when one shows sufficiently dramatic drops in work output, work quality, marketable skills, competence, etc. that one ought not to BE in the labour market. If we were living in a Henry Ford world, maybe, but the rate of production in many sectors has long since ceased depending on the brawn and reaction time of the preponderance of employees.
So, even though the social/economic demarcation between pensionable and nonpensionable age did not have its historical origins in any notions of age-related competence, the very receipt of pension, and in particular its role as a *replacement* for earned income, has tainted older workers, and created the sense that age discrimination in the workplace is somehow legitimate, defensible, and the “natural order” of things. A current case involving mandatory retirement at a Canadian university has evoked responses from on-line commenters that the faculty involved are of less value *because* they are older, and that they should essentially move out of the way to provide jobs for younger people. Such comments harken back to the early days of the labour movement, and the basis for shunting older workers aside, regardless of outcome. Now, 90 years later, we see ourselves in a position where such naive views are further entrenched by the very existence of pensions. It is almost as if age discrimination is reasonable *because* we know older workers can turn to pensions. In other words, it couldn’t be “bad discrimination” if the victim ends up benefitting financially. In contrast, of course, one does not receive any money from the state for being a member of any of the other protected groups. That’s what makes it implicitly “bad discrimination”.
So, to tie things together, the extent and persistence of age discrimination is, to my mind, influenced by the many ways that have evolved over time to economically buffer against what was initially considered unfair discrimination but has since come to be perceived as normal.
Because all news stories are about people, and people, as a rule, have some cultural background. ,
I agree with everything that has been offered, adding again that a reality is that many business practices are age based or age related. Whether it be concepts such as succession or workforce planning or simple an emphasis on recruiting millenials, we do not seem to have any problem accepting the idea of age based decision making. It could be argued that making decisions based on age is one of the few types of discrimination widely accepted in society.