Legislation
Class Notes
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
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