That’s Ann Althouse’s question. (The actual measure on the ballot would have increased the retirement age for New York judges from 70 to 80, which does not go as far as the federally enacted mandate applicable to private-sector employers, which forbids the prescription of automatic retirement at any age at all.)
The state’s chief judge, Jonathan Lippman, calls the old age limit “outdated,” and Althouse replies:
What is outdated about thinking that older persons hang onto their jobs too long and fail to open positions to younger persons with new perspectives and experience with life as it is lived today? What is outdated about thinking that judges, cloistered and cosseted by the respect their office commands, lack accurate feedback about how well they are really doing? What is outdated about thinking that the judges, with their sharp and hardworking ghostwriters (AKA “clerks”), are unusually shielded from having their failing competence exposed?
I would add that while many advocates of modern employment law insist that we regard “age discrimination” as if it were somehow a phenomenon parallel to prejudice on the basis of race or ethnicity, and odious for the same reasons if not to as high a degree, I see little evidence that the general public has been sold on that proposition.
In an article today on challenges facing older jobless workers, New York Times reporter Michael Winerip asserts that “Since the Supreme Court ruling [Gross v. FBL Financial Services, a 2009 Supreme Court ruling that made it slightly more difficult to win suits] most lawyers won’t even take age discrimination cases.” Connecticut employment-law blogger Daniel Schwartz wonders where that claim comes from, since the number of EEOC charges in age-bias cases has gone up, not down, since 2009, and since “NELA – the National Employment Lawyers Association — continues to put forward CLE programs discussing how to advance ADEA claims. … So, where did the Times get this assertion from? I’ve hunted for a source but have yet to find one.” [Connecticut Employment Law Blog]
Thousands die while waiting for kidneys, while thousands of sound donated kidneys are thrown out. Among culprits, per the New York Times: “an outdated computer matching program, stifling government oversight, the overreliance by doctors on inconclusive tests and even federal laws against age discrimination.” One federal initiative, for example, penalizes institutions whose transplant success rate is less than stellar. What could go wrong?
…dozens of transplant specialists said the threat of government penalties had made doctors far more selective about the organs and patients they accepted, leading to more discards … [Toledo transplant surgeon Michael] Rees still bristles at the trade-off. “Which serves America better?” he asked. “A program doing 100 kidneys and 88 percent of them are working, or a program that does 60 kidneys and 59 of them are working? It’s rationing health care under the guise of quality, and it’s a tragedy that we are throwing away perfectly good organs.”
Meanwhile, Europe has had success with the practice of matching donors with recipients within the same age bracket, but a similar proposal in the U.S. “died quickly after federal officials warned that discrimination laws would prohibit the use of age to determine outright who gets a transplant.”
Nassau County, N.Y., had let go 71-year-old veteran lifeguard Jay Lieberfarb after he failed a swim test. Charging that the county had not always dismissed younger guards who had failed the same test, the EEOC proceeded to negotiate a $65,000 back pay settlement, a three-year consent decree and other relief. [EEOC press release; h/t Roger Clegg] Earlier on superannuated lifeguards [Ocean City, N.J.] (& welcome Chris Fountain readers; he recommends this blog as a cure for low blood pressure)
The Bloomberg columnist explains his qualms about the law, playing off the Nicholas Spaeth case, in which a 60-year-old lawyer who had achieved a distinguished career in public office was turned down by every law school at which he sought to teach, and is suing many of them. “Was the law ever intended to protect baby boomers in no particular financial distress looking for a suitable capstone to a successful career?” And suits over hiring are of course the exception; rather more often, the law supplies the legal leverage to obtain a larger severance when someone bows out of such a career. I’ve written on the subject here (in Chapter 8 of The Excuse Factory), here, and here.
“Musician suing for age bias says his 88-year-old judge is too old to preside, ‘unable to function’” [New York Daily News headline]
Ocean City, N.J., a municipality of 12,000 residents, has recently been coping with nine lawsuits filed by municipal workers. Among them: lifeguards aged 66 and 68 who alleged employment discrimination against them based on their age. [Douglas Bergen, Ocean City Patch via AnnMarie McDonald, New Jersey Lawsuit Abuse Watch; Press of Atlantic City].
In a new Reason symposium on how to revitalize the American job market, I explain my answer to that question.
More: This set off a round of discussion on employment blogs including Jon Hyman (nominating FLSA for vaporization), Suzanne Boy (concur), Daniel Schwartz (leave laws), Suzanne Lucas (citing “the fabulous Overlawyered.com”), the ABA Journal, Tim Eavenson, Jon Hyman again, HR Daily Report, and Russell Cawyer. Also relevant on age discrimination laws: a June symposium in the NYT’s “Room for Debate” feature; ComputerWorld on age bias and IT.
Former North Dakota Attorney General Nicholas Spaeth may face an uphill fight in a newly filed action alleging age discrimination in law faculty hiring, predicts Jeff Lipshaw [PrawfsBlawg, with comments]. Spaeth believes “more than 100 law schools discriminated against him by refusing to consider him for teaching jobs because of his age” despite an impressive earlier career in the law [ABA Journal]. Represented by attorney Lynne Bernabei, Spaeth has sued Michigan State and expects to add other schools as defendants. As Prawfsblawg commenters note, Spaeth’s underlying gripe may be with the overwhelmingly dominant model of law faculty hiring (reinforced by accreditation and rating pressures) in which expected future scholarly output, as opposed to, say, teaching excellence or even adequacy, tends to dominate hiring for tenured positions.
Lake-Sumter Community College in Leesburg, Florida is refusing to admit a home-schooled teenager because of her age: 13. “Undeterred, her parents have filed an age-discrimination complaint against the college with the U.S. Department of Education’s Office for Civil Rights.” [Martin Comas, Orlando Sentinel]
The prospective plaintiff could really use the money, but is ethically troubled by the lawyer’s approach. [Knight Kiplinger, Kiplinger.com via California Civil Justice]