The Supreme Court's Recent Ruling that Federal Age Discrimination Law Protects the Old, but not the Young:
Dodging the Deeper Issue

In the recent case of General Dynamics Land Systems, Inc. v. Cline, the U.S. Supreme Court ruled that the Age Discrimination in Employment Act (ADEA) does not recognize "reverse age discrimination" claims: while the Act prohibits employers from favoring the young over the old, the Court said, it permits preferences for the old over the young.

The Court thus construed the ADEA quite differently from the statutory prohibitions on race and sex discrimination, which cut both ways. For instance, although federal anti-discrimination law permits some race and sex based programs of affirmative action, it does not permit outright exclusions of whites or men from the workplace; yet under the Court's reading of the ADEA, such an outright exclusion of the young is permissible.

The Supreme Court decision in General Dynamics is not obviously wrong. There are reasons to think that Congress meant age to be treated differently from race and sex.

But what is troubling about the Court's reasoning--as well as the dissent's for that matter--is that despite the ambiguity of the relevant statutory text, the Justices saw no room to engage the real question: Is discrimination against the young invidious?

The ADEA prohibits employment discrimination based on an "individual's age." As Justice Souter explained for the majority in General Dynamics, depending on the context, the word "age" can be used to mean how old or young someone is, or it could mean "old age."

Title VII of the 1964 Civil Rights Act--the principal federal workplace anti-discrimination statute--the Court said, is different. That statute prohibits discrimination based on "race" and "sex." There is no use of these words that denotes only one race or one sex.

Accordingly, in the view of the majority in General Dynamics, the ADEA presented the courts with a question that they have not had to answer with respect to Title VII: in which sense did Congress mean to use the statute's key word?

The Justices relied on two main pieces of evidence for their conclusion that Congress meant to prohibit discrimination based only on old age. First, the legislative history and findings recited in the ADEA itself showed an almost exclusive concern that older Americans were being denied opportunities in the workplace based upon unfounded stereotypes about their ability to perform. There was no similar concern about stereotyping of the young, or limitations on job opportunities or advancement for the young.

Second, the ADEA itself only prohibits age discrimination against people who are forty years old or older. Congress could not have intended to prohibit discrimination based on youth as well as discrimination based on old age, the majority reasoned, because the workers most likely to be the victims of unwarranted stereotypes about youthful immaturity or inexperience will typically be substantially younger than forty.

Justices Scalia and Thomas dissented. In their view, if Congress had meant to prohibit only discrimination against the old, it could have said so. Absent such a clearly uni-directional statement by Congress, they thought, the Court should not narrow the statute's coverage.

The dissenters pointed out that the Congress that enacted the 1964 Civil Rights Act, which includes Title VII, was concerned about discrimination against African Americans; yet, that has not prevented the courts from reading the general prohibition on race discrimination as applying to (most forms of) discrimination against whites. Age, they said, should not be treated any differently. Although Congress was thinking about the old, the general language it adopted applies to the young as well.

The dissenters had a somewhat harder time dealing with the fact that the ADEA does not protect workers under the age of forty. Justice Thomas said that Congress could have thought that someone under forty who loses a job or a promotion is still young enough to get another job, and so victims of age discrimination in either direction would have less need for the statute's protection when under forty.

That's possible, I suppose, but Justice Thomas's explanation for the forty-year threshold itself seems to rely on the very sorts of stereotypes about the young that, according to his reading of the ADEA, the Act was more generally designed to prohibit: They're still healthy, they have all the options in the world, and so on. His reading is not illogical; but it does have some internal tension.

Both the majority and the dissent claimed that General Dynamics was an easy case. The dissenters said that the prohibition on age-based discrimination clearly cuts both ways. The majority said that, taken in context, the prohibition clearly protects only the old.

Obviously both can't be right, and in fact both the majority and dissent are wrong. Indeed, the very fact that each side rejected the other side's reading of the statute shows that whatever the age discrimination prohibition means, it is not crystal clear.

That ambiguity would, in turn, seem to suggest that the dissenters had the better of the ultimate argument. The Equal Employment Opportunity Commission (EEOC) has long taken the position that the ADEA applies to discrimination against the (over-forty) young as well as to discrimination against the old. And it is the general practice of the courts to grant deference to agency interpretations of statutes that they are empowered to enforce.

But there remains a lingering question of whether the EEOC is entitled to the kind of deference that other agencies receive. The majority thought it unnecessary to answer that question because, according to Justice Souter, even if the EEOC received the maximum deference, its interpretation was so clearly contrary to the statute's meaning that the Commission's views would have to be set aside.

So perhaps the General Dynamics case should have turned on the unanswered question of how much deference, exactly, the EEOC should receive. If the answer is "a lot," then the case was wrongly decided: faced with an ambiguous statutory provision, the Court should have deferred to the EEOC's view. Then, the majority would be wrong, and the dissenters right.

But what if the answer to the question of how much deference the EEOC should receive is "none" or "not very much?" How then should the Court have resolved the ambiguity in the statutory text?

Legal scholars have long noted that in close cases, judges typically consider questions of policy as well as technical legal matters, and properly so. Faced with an ambiguous statutory command, courts appropriately ask what makes sense: what resolution of the ambiguity will best serve justice?

The Supreme Court's interpretation of the Equal Protection Clause of the Fourteenth Amendment is filled with this sort of reasoning. In deciding whether racially segregated schools or affirmative action is permissible, the Justices do not simply ask what the framers and ratifiers of the Fourteenth Amendment would have thought about the question. They also ask what answer makes the most sense today.

There is a familiar objection to this approach to constitutional adjudication: because the Constitution is so difficult to amend, judges who read their own values into the Constitution pose a threat to the democratic process.

But whatever the strength of that objection in constitutional cases, it is considerably weaker in statutory cases like this one. If the Court reads a federal statute--like the ADEA--in a way that substantially departs from the popular consensus, Congress can change the law through the ordinary legislative process.

Remarkably, however, neither the majority nor the dissent in General Dynamics engaged in any policy analysis whatsoever. Both were content to puzzle over the meaning of the words of the statute, as though this were a purely lexicographical exercise.

Thus, the Court's approach seems exactly backwards. With respect to the constitutional question of how to interpret the Equal Protection Clause, raised in earlier cases, the Justices engage fundamental questions of value, despite the fact that in doing so, they threaten to permanently usurp a legislative function.

Yet with respect to the statutory question of how to interpret the ADEA, raised in this case, the Justices act as mere etymologists, even though Congress could readily reverse any policy judgment they were to reach.

How, then, should the Justices have resolved the textual ambiguity in the ADEA? That is a genuinely hard question, but I would side with the result, if not necessarily all of the reasoning, of the dissent.

In explaining what he thought Congress must have meant in proscribing age discrimination, Justice Souter observed that it is a commonplace that we live in a "youth culture." He's right, of course. Far from respecting the wisdom and experience of age, our society does stereotype the old as unattractive and unproductive.

But to recognize that the old are frequently the victims of discrimination is not to deny that sometimes the young are the victims of stereotypes as well. Even if age discrimination against the young is less common than age discrimination against the old, when the former happens it may still be invidious.

Moreover, in the Court's equal protection jurisprudence, one marker for heightened judicial protection is political power. It is a commonplace that the old have vastly more political power than the young, enabling the old to secure proportionately greater funding for programs that benefit themselves than the young are able to obtain for themselves.

Granted, the young aren't quite what the Court's equal protection cases call a "discrete and insular minority." But neither is it outlandish to think that their lack of political power relative to the old calls for some greater judicial solicitude.

What makes the issue in General Dynamics genuinely difficult is the fact that Congress limited the ADEA to those over forty. To my mind, Justice Souter's explanation for why Congress included the limitation in the statute's text makes more sense than Justice Thomas's explanation.

Nonetheless, I agree with Justice Thomas's bottom line, because I don't think that an arguably unprincipled exception to a general anti-discrimination law should be given greater force than Congress expressly provided for it. Congress said the age limit was a limit on who could sue--not a limit on what kind of discrimination (based on youth, or old age), the person suing could allege.

Congress may well have intended to protect only the old when it enacted the ADEA. But then, the Congress that proposed the Fourteenth Amendment probably didn't intend to bar racially segregated schools or sex discrimination. Yet the Amendment's language has properly been interpreted to do exactly that.

Here, as with the Fourteenth Amendment, we can find clues to the limits of Congress's subjective intent in other bits of enacted text. But the language of the statute itself--like the Fourteenth Amendment's language--simply does not contain the proffered limit.

Finally, it is worth comparing the ADEA with the Twenty-Sixth Amendment. Like the ADEA, the Twenty-Sixth Amendment contains both an express prohibition on discrimination based on "age," and sets a minimum age threshold. The Twenty-Sixth Amendment bars state or federal age discrimination with respect to voting for all citizens over the age of eighteen. There is little doubt that the Congress that proposed the Twenty-Sixth Amendment (just a few years after the adoption of the ADEA) was concerned about disenfranchisement of eighteen-to-twenty-one-year-olds. But there is equally little doubt that notwithstanding that specific problem, the general anti-discrimination language prohibits disenfranchisement of the old no less than the young.

Where Congress uses the broad language of anti-discrimination law, those who would limit that language should bear the burden of persuasion. Although the General Dynamics majority plausibly construed Congress's subjective intent, it failed to discharge this burden.