Legislation Class Notes 4/15/04


More on the ADEA


What mischief was the 1967 ADEA designed to prevent?  It seems like it mostly had to do with getting more older people hired.  If that’s the main point, it would seem like discrimination in terms of benefits aren’t as important.


Congress says that we don’t want involuntary retirement!  We’re outlawing benefit plans that permit involuntary retirement.  This relates to job security and retention rather than hiring.  We have a Title focused on employee benefits.  It tells us that protecting older workers against benefit discrimination was a purpose of the Act all along.  The issues changed over time.  In boom times, hiring was more important, and in slow times, layoffs were more important.


The purpose from 1967 seems less relevant when we look at how the language of 4(f)(2) gets applied.  Recall when we were looking at Weber.  We want to prevent “arbitrary age discrimination”.  What this means to Congress changed over time.  Statutory purpose takes on an evolving meaning depending on what Congress is focusing on.


Now, let’s look at McMann.


United Air Lines, Inc. v. McMann


McMann joined a retirement plan before 1967.  It said that he had to retire at age 60.  What about subterfuge?  What about plain meaning?  What does Justice White say?  White will grant that establishing the plan wasn’t a subterfuge, but each year the airline decided to maintain its plan without changes.  White says that those decisions are equally susceptible to a subterfuge analysis.  Is it a good idea to immunize all pre-Act plans as a policy matter?  Would we grandfather in plans that discriminate based on sex or race that were created before 1964?  Can you perpetuate intentional discrimination?  If we grant the majority the possibility that it’s getting it right in terms of what Congress meant, then what might have been a worry for Congress?  What about bona fide seniority systems?  What are the costs involved for employers?  White’s concern is valid: maybe someone is saying that each year as they look at this that they want to push older workers out as soon as possible.


Public Employees Ret. Sys. of Ohio v. Betts


Here is disability insurance.  This relates to disability retirement.  Is there a stereotype here?  Who are the likely demographic victims of a policy like this?  What about the 1976 amendment?


What’s the deal?  What’s going on?  The majority in the Court is not particularly sympathetic to legislative history.


What about the word “subterfuge”?  What’s the deal?  Does the addition of 4(k) vindicate the Court’s approach in McMann and Betts?  Maybe they educated Congress that if they want to say something, they must say it in the text.  This Act was one of two major civil rights statutes on the floor of the House and Senate in 1990.  The key Republican senator, Senator Hatch, was the key negotiator.  Later, he was the key actor again.  Hatch abandoned the compromise.  Senator Specter and other moderate Republicans said that it can’t be a quota bill because Hatch wrote the language and there’s no way he would have written quota language.  But Hatch would not go against his own president twice in a three week period.  The vote on the bill was 66-34, or one vote short of a veto-proof majority.  Hatch was a key player because he was a ranking member on certain committees.


The floor statements suggest that we want the stuff to cover activity before and after the effective date of the Act.  What if you’re Scalia?  What would Scalia say?  He would say that the Court has told Congress twice just what subterfuge means.


Three months before they expunged the word “subterfuge” from the ADEA, is there some relevance to the fact that the ADA was enacted before that?  If you’re Scalia, can you use the fact that this didn’t happen until after the ADA was law?  He’ll argue that what the Congress said in July was exactly what the Supreme Court said that subterfuge meant.  Should you follow the legislative history?


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