Is age discrimination really age discrimination?: The Adea's unnatural solution

New York University Law Review

Volumn 72, Issue 4, 1997, Pages 780-836

  Issacharoff, Samuel ^a,b,c   Harris, Erica Worth ^a,d,e,f  

^a UNIVERSITY OF TEXAS   (United States)

^b BINGHAMTON UNIVERSITY   (United States)

^c YALE UNIVERSITY   (United States)

^d US Dist Ct the S Dist of Texas ^*  (United States)

^e UNIVERSITY OF VIRGINIA SCHOOL OF LAW   (United States)

^f RICE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 1542396381     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (334)

1. See Edward M. Weyer, The Eskimos 248 (1932) (discussing means employed by Eskimos to commit suicide). Professor Weyer also reports that this practice is sometimes accelerated by outright geronticide. See id. at 137-39.
2. 29 U.S.C. §§ 621-34 (1994).
3. See James J. Heckman & Brook S. Payner, Determining the Impact of Federal Antidiscrimination Policy on the Economic Status of Blacks: A Study of South Carolina, 79 Am. Econ. Rev. 138, 173-74 (1989) (noting marked increase in number of blacks employed in textile industry in South Carolina after enactment of Title VII); James J. Heckman & J. Hoult Verkerke, Racial Disparity and Employment Discrimination Law: An Economic Perspective, 8 Yale L. & Pol'y Rev. 276, 290 (1990) (noting that enactment of Title VII dramatically expanded pool of available workers in southern textile plants and that "economic incentive for nondiscrimination created a powerful leverage effect for the law").
4. See James J. Heckman & Brook S. Payner, Determining the Impact of Federal Antidiscrimination Policy on the Economic Status of Blacks: A Study of South Carolina, 79 Am. Econ. Rev. 138, 173-74 (1989) (noting marked increase in number of blacks employed in textile industry in South Carolina after enactment of Title VII); James J. Heckman & J. Hoult Verkerke, Racial Disparity and Employment Discrimination Law: An Economic Perspective, 8 Yale L. & Pol'y Rev. 276, 290 (1990) (noting that enactment of Title VII dramatically expanded pool of available workers in southern textile plants and that "economic incentive for nondiscrimination created a powerful leverage effect for the law").
5. See Age Discrimination in Employment: Hearings on H.R. 3651, H.R. 3768, and H.R. 4221 Before the Gen. Subcomm. on Labor of the House Comm. on Educ. and Labor, 90th Cong. 7 (1967) [hereinafter 1967 House Hearings] (statement of W. Willard Wirtz, Secretary of Labor). Some members of Congress had been urging age discrimination legislation since 1951, but Congress did not give the issue serious consideration until 1967. See S. Rep. No. 90-723, at 13 (1967) (individual views of Sen. Jacob V. Javits) (discussing history of efforts to legislate against age discrimination in employment).
6. See 1967 House Hearings, supra note 4, at 61 (statement of Peter J. Pestillo, Labor Counsel, U.S. Chamber of Commerce) ("In 1965, unemployment for workers under 45 lasted an average of 13.1 weeks. Workers who were over 45, however, remained idle for 19.1 weeks."); id. at 151 (statement of Rep. Joshua Eilberg) (citing unemployment statistics for older workers); id. at 153-54 (statement of William D. Bechill, Commissioner on Aging) (noting problem of long-term unemployment amongst elderly); id. at 422 (statement of Rep. Claude Pepper) (reporting that numerous studies demonstrated problem of long-term unemployment among older workers).
7. See Amendments to the Age Discrimination in Employment Act of 1967: Hearing on H.R. 14879 and H.R. 15342 Before the Subcomm. on Equal Opportunities of the House Comm. on Educ. and Labor, 94th Cong. 40 (1976) (statement of W. Willard Wirtz, Secretary of Labor) (arguing that "[t]he unemployment costs of a distressed economy must not be thrown disproportionately on older people").
8. See 1967 House Hearings, supra note 4, at 7 (statement of W. Willard Wirtz, Secretary of Labor) (reporting that large part of age discrimination is due to "a failure on the part of employers to realize how technology and the life sciences have combined to increase the value of older people's work"); id. at 45 (statement of Norman Sprague, Director, Employment and Retirement Program, National Council on the Aging) (relating age discrimination "to the inaccurate views often held concerning the physical abilities, learning capacities, and psychological flexibility of older persons"); id. at 154 (statement of William D. Bechill, Commissioner on Aging) (stating that "stereotyped attitudes about the ability of older people . . . play a major role in barring older workers from fair employment consideration").
9. See id. at 7 (statement of W. Willard Wirtz, Secretary of Labor) (stressing that "it is opportunity which people want" and providing examples of older workers who could not find employment); id. at 60 (statement of Peter J. Pestillo, Labor Counsel, U.S. Chamber of Commerce) ("The underlying goal of the proposed legislation is a laudable one: that of opening up greater job opportunities to older people."); id. at 81-82 (statement of Dr. Harold L. Sheppard, Upjohn Institute for Employment Research) (discussing difficulties faced by older workers looking for work); id. at 84 (comments of Rep. John H. Dent) (discussing problem of older workers trying to find reemployment after layoff); id. at 155 (statement of William D. Bechill, Commissioner on Aging) (noting that ADEA would be "effective tool in reducing the incidence of this problem of discriminatory hiring practices based solely on chronological age"); see also United Air Lines, Inc. v. McMann, 434 U.S. 192, 203 n.9 (1977) (citing H.R. Rep. 90-805, at 4 (1967), reprinted in 1967 U.S.C.C.A.N. 2213) (noting primary purpose of ADEA was to promote hiring of older workers).
10. 1967 House Hearings, supra note 4, at 154 (statement of William D. Bechill, Commissioner on Aging).
11. See id.
12. See id. at 7 (statement of W. Willard Wirtz, Secretary of Labor) (characterizing problem of age discrimination in employment as "inhuman . . . bad business . . . [and] indecent").
13. See id. at 156 (statement of William D. Bechill, Commissioner on Aging) (urging Congress to combat "arbitrary, unjust discrimination"); id. at 450 (statement of Rep. James A. Burke) (commenting that age discrimination is "unfair and inequitable").
14. See id. at 9 (statement of W. Willard Wirtz, Secretary of Labor) (quoting President Johnson describing age discrimination as "cruel sacrifice in happiness and well-being"); id. at 404 (statement of Charles Rowan, Chairman, Jobs After 40 Committee, Fraternal Order of Eagles) (stating that "the cruel, senseless discrimination against older people in employment goes on unchecked").
15. See id. at 155 (statement of William D. Bechill, Commissioner on Aging) (commenting on educational benefits of legislation).
16. See id. at 60 (statement of Peter J. Pestillo, Labor Counsel, U.S. Chamber of Commerce) (citing opportunity as "underlying goal" of legislation).
17. See id. at 55-56 (comments of Rep. Roman C. Pucinski) (reviewing proposal that employers be given tax credit for hiring older workers).
18. Id. at 426 (statement of Francis O'Connell, Legislative Director, Transportation Workers Union); see also id. at 6 (statement of W. Willard Wirtz, Secretary of Labor) (making nearly identical comments).
19. See Daniel P. O'Meara, Protecting the Growing Number of Older Workers: The Age Discrimination in Employment Act 14 (1989) ("[T]here was no significant opposition to the ADEA in Congress. The popular press paid very little attention to the bill.").
20. Pub. L. No. 90-202, 81 Stat. 602 (codified as amended at 29 U.S.C. §§ 621-34 (1994)).
21. See George Rutherglen, From Race to Age: The Expanding Scope of Employment Discrimination Law, 24 J. Legal Stud. 491, 496 (1995) (noting that "the ADEA simply paraphrases the corresponding prohibition in Title VII").
22. Age Discrimination in Employment Act § 4, 81 Stat. at 603 (codified as amended at 29 U.S.C. § 623(a)(1) (1994)).
23. See Older Workers Benefit Protections Act: Joint Hearing on S. 1511 Before the Subcomm, on Labor of the Comm. on Labor and Human Resources and the Special Comm. on Aging, 101st Cong. 231 (1989) [hereinafter OWBPA Hearings] (statement of Mark S. Dichter, on behalf of the Association of Private Pension and Welfare Plans, U.S. Chamber of Commerce, National Association of Manufacturers, and ERISA Industrial Committee) (noting that in 1967, "Congress understood that age discrimination is by nature different from discrimination on the basis of race or sex").
24. 1967 House Hearings, supra note 4, at 5 (comments of Rep. John H. Dent).
25. Id. at 69 (statement of Peter J. Pestillo, U.S. Chamber of Commerce).
26. Id. at 45 (statement of Norman Sprague, Director, Employment and Retirement Program, National Council on Aging).
27. See Age Discrimination in Employment Act § 12, 81 Stat. at 604 (codified as amended at 29 U.S.C. § 631 (a) (1994)).
28. See id. § 6, 81 Stat. at 607 (codified as amended at 29 U.S.C. § 632 (1994)).
29. See O'Meara, supra note 18, at 22-23 (citing Bureau of Labor Statistics, U.S. Dep't of Labor, Unemployed Persons by Duration, Sex, Age, Color and Marital Status, Employment and Earnings 25 (1967)) ("The ADEA has ultimately failed at its primary purpose, the reduction of long-term unemployment among older workers.").
30. See, e.g., Impact of the Age Discrimination in Employment Act of 1967: Hearings Before the Subcomm. on Retirement Income and Employment of the Select Comm. on Aging, 94th Cong. 5 (1976) [hereinafter Impact Hearings] (statement of Norman Sprague, Director, New Life Institute) (stating that "for workers covered by this Act . . . the employment situation is still not at all good").
31. See id. at 25 (statement of Rep. William Randall) (stating that "backlog" of ADEA cases has increased every year).
32. See Bureau of Labor Statistics, U.S. Dep't of Labor, Unemployment Rate by Sex, Race and Age, 1947-1979 Handbook of Labor Statistics 67 (1980).
33. Although some dispute the effect of inflation on real wage structures, particularly after the 1970s, nominal wages (the actual dollar figure for wages) still follow the pattern of steady increases over time.
34. This implicit contract was first described by Edward Lazear. See Edward P. Lazear, Why Is There Mandatory Retirement?, 87 J. Pol. Econ. 1261, 1262 (1979) (developing what is now recognized as the life-cycle model). Lazear's model of life-cycle employment has been generally accepted, receiving much empirical support. See, e.g., Robert Hutchens, Delayed Payment Contracts and a Firm's Propensity to Fire Older Workers, 4 J. Lab. Econ. 439, 440 (1986) (determining that certain jobs for which older workers are employed but not hired have characteristics associated with delayed payment contracts, in accordance with Lazear's life-cycle model); George Loewenstein & Nachum Sicherman, Do Workers Prefer Increasing Wage Profiles?, 9 J. Lab. Econ. 67, 68 (1991) (reporting that even in careers in which "productivity would seem to be relatively static, workers receive wages that rise substantially with tenure") (citing Robert F. Frank & Robert M. Hutchens, Feeling Good vs. Feeling Better: A Life-Cycle Theory of Wages (1988) (unpublished working paper, Cornell University, Department of Economics)); James L. Medoff & Katharine G. Abraham, Are Those Paid More Really More Productive? The Case of Experience, 16 J. Hum. Resources 186, 186 (1981) (summarizing results of empirical study showing that experience cannot adequately explain experience-earnings profile); Jacob Mincer & Boyan Jovanovic, Labor Mobility and Wages, in Studies in Labor Markets 21, 25-28 (Sherwin Rosen ed., 1981) (finding that wages within firm rise relative to alternative opportunities as job seniority increases); see also Stewart J. Schwab, Life-Cycle Justice: Accommodating Just Cause and Employment at Will, 92 Mich. L. Rev. 8, 11 (1993) (using life-cycle employment model to argue that contract protections should be provided for employees at beginning and end of cycle); Michael L. Wachter & George M. Cohen, The Law and Economics of Collective Bargaining: An Introduction and Application to the Problems of Subcontracting, Partial Closure, and Relocation, 136 U. Pa. L. Rev. 1349, 1356-64 (1988) (using life-cycle model of employment to analyze efficiency of internal labor markets). But see J. Hoult Verkerke, An Empirical Perspective on Indefinite Term Employment Contracts: Resolving the Just Cause Debate, 1995 Wis. L. Rev. 837, 912-13 (1995) (arguing that these implicit commitments should not be basis for implied contractual obligations).
35. This implicit contract was first described by Edward Lazear. See Edward P. Lazear, Why Is There Mandatory Retirement?, 87 J. Pol. Econ. 1261, 1262 (1979) (developing what is now recognized as the life-cycle model). Lazear's model of life-cycle employment has been generally accepted, receiving much empirical support. See, e.g., Robert Hutchens, Delayed Payment Contracts and a Firm's Propensity to Fire Older Workers, 4 J. Lab. Econ. 439, 440 (1986) (determining that certain jobs for which older workers are employed but not hired have characteristics associated with delayed payment contracts, in accordance with Lazear's life-cycle model); George Loewenstein & Nachum Sicherman, Do Workers Prefer Increasing Wage Profiles?, 9 J. Lab. Econ. 67, 68 (1991) (reporting that even in careers in which "productivity would seem to be relatively static, workers receive wages that rise substantially with tenure") (citing Robert F. Frank & Robert M. Hutchens, Feeling Good vs. Feeling Better: A Life-Cycle Theory of Wages (1988) (unpublished working paper, Cornell University, Department of Economics)); James L. Medoff & Katharine G. Abraham, Are Those Paid More Really More Productive? The Case of Experience, 16 J. Hum. Resources 186, 186 (1981) (summarizing results of empirical study showing that experience cannot adequately explain experience-earnings profile); Jacob Mincer & Boyan Jovanovic, Labor Mobility and Wages, in Studies in Labor Markets 21, 25-28 (Sherwin Rosen ed., 1981) (finding that wages within firm rise relative to alternative opportunities as job seniority increases); see also Stewart J. Schwab, Life-Cycle Justice: Accommodating Just Cause and Employment at Will, 92 Mich. L. Rev. 8, 11 (1993) (using life-cycle employment model to argue that contract protections should be provided for employees at beginning and end of cycle); Michael L. Wachter & George M. Cohen, The Law and Economics of Collective Bargaining: An Introduction and Application to the Problems of Subcontracting, Partial Closure, and Relocation, 136 U. Pa. L. Rev. 1349, 1356-64 (1988) (using life-cycle model of employment to analyze efficiency of internal labor markets). But see J. Hoult Verkerke, An Empirical Perspective on Indefinite Term Employment Contracts: Resolving the Just Cause Debate, 1995 Wis. L. Rev. 837, 912-13 (1995) (arguing that these implicit commitments should not be basis for implied contractual obligations).
36. This implicit contract was first described by Edward Lazear. See Edward P. Lazear, Why Is There Mandatory Retirement?, 87 J. Pol. Econ. 1261, 1262 (1979) (developing what is now recognized as the life-cycle model). Lazear's model of life-cycle employment has been generally accepted, receiving much empirical support. See, e.g., Robert Hutchens, Delayed Payment Contracts and a Firm's Propensity to Fire Older Workers, 4 J. Lab. Econ. 439, 440 (1986) (determining that certain jobs for which older workers are employed but not hired have characteristics associated with delayed payment contracts, in accordance with Lazear's life-cycle model); George Loewenstein & Nachum Sicherman, Do Workers Prefer Increasing Wage Profiles?, 9 J. Lab. Econ. 67, 68 (1991) (reporting that even in careers in which "productivity would seem to be relatively static, workers receive wages that rise substantially with tenure") (citing Robert F. Frank & Robert M. Hutchens, Feeling Good vs. Feeling Better: A Life-Cycle Theory of Wages (1988) (unpublished working paper, Cornell University, Department of Economics)); James L. Medoff & Katharine G. Abraham, Are Those Paid More Really More Productive? The Case of Experience, 16 J. Hum. Resources 186, 186 (1981) (summarizing results of empirical study showing that experience cannot adequately explain experience-earnings profile); Jacob Mincer & Boyan Jovanovic, Labor Mobility and Wages, in Studies in Labor Markets 21, 25-28 (Sherwin Rosen ed., 1981) (finding that wages within firm rise relative to alternative opportunities as job seniority increases); see also Stewart J. Schwab, Life-Cycle Justice: Accommodating Just Cause and Employment at Will, 92 Mich. L. Rev. 8, 11 (1993) (using life-cycle employment model to argue that contract protections should be provided for employees at beginning and end of cycle); Michael L. Wachter & George M. Cohen, The Law and Economics of Collective Bargaining: An Introduction and Application to the Problems of Subcontracting, Partial Closure, and Relocation, 136 U. Pa. L. Rev. 1349, 1356-64 (1988) (using life-cycle model of employment to analyze efficiency of internal labor markets). But see J. Hoult Verkerke, An Empirical Perspective on Indefinite Term Employment Contracts: Resolving the Just Cause Debate, 1995 Wis. L. Rev. 837, 912-13 (1995) (arguing that these implicit commitments should not be basis for implied contractual obligations).
37. This implicit contract was first described by Edward Lazear. See Edward P. Lazear, Why Is There Mandatory Retirement?, 87 J. Pol. Econ. 1261, 1262 (1979) (developing what is now recognized as the life-cycle model). Lazear's model of life-cycle employment has been generally accepted, receiving much empirical support. See, e.g., Robert Hutchens, Delayed Payment Contracts and a Firm's Propensity to Fire Older Workers, 4 J. Lab. Econ. 439, 440 (1986) (determining that certain jobs for which older workers are employed but not hired have characteristics associated with delayed payment contracts, in accordance with Lazear's life-cycle model); George Loewenstein & Nachum Sicherman, Do Workers Prefer Increasing Wage Profiles?, 9 J. Lab. Econ. 67, 68 (1991) (reporting that even in careers in which "productivity would seem to be relatively static, workers receive wages that rise substantially with tenure") (citing Robert F. Frank & Robert M. Hutchens, Feeling Good vs. Feeling Better: A Life-Cycle Theory of Wages (1988) (unpublished working paper, Cornell University, Department of Economics)); James L. Medoff & Katharine G. Abraham, Are Those Paid More Really More Productive? The Case of Experience, 16 J. Hum. Resources 186, 186 (1981) (summarizing results of empirical study showing that experience cannot adequately explain experience-earnings profile); Jacob Mincer & Boyan Jovanovic, Labor Mobility and Wages, in Studies in Labor Markets 21, 25-28 (Sherwin Rosen ed., 1981) (finding that wages within firm rise relative to alternative opportunities as job seniority increases); see also Stewart J. Schwab, Life-Cycle Justice: Accommodating Just Cause and Employment at Will, 92 Mich. L. Rev. 8, 11 (1993) (using life-cycle employment model to argue that contract protections should be provided for employees at beginning and end of cycle); Michael L. Wachter & George M. Cohen, The Law and Economics of Collective Bargaining: An Introduction and Application to the Problems of Subcontracting, Partial Closure, and Relocation, 136 U. Pa. L. Rev. 1349, 1356-64 (1988) (using life-cycle model of employment to analyze efficiency of internal labor markets). But see J. Hoult Verkerke, An Empirical Perspective on Indefinite Term Employment Contracts: Resolving the Just Cause Debate, 1995 Wis. L. Rev. 837, 912-13 (1995) (arguing that these implicit commitments should not be basis for implied contractual obligations).
38. This implicit contract was first described by Edward Lazear. See Edward P. Lazear, Why Is There Mandatory Retirement?, 87 J. Pol. Econ. 1261, 1262 (1979) (developing what is now recognized as the life-cycle model). Lazear's model of life-cycle employment has been generally accepted, receiving much empirical support. See, e.g., Robert Hutchens, Delayed Payment Contracts and a Firm's Propensity to Fire Older Workers, 4 J. Lab. Econ. 439, 440 (1986) (determining that certain jobs for which older workers are employed but not hired have characteristics associated with delayed payment contracts, in accordance with Lazear's life-cycle model); George Loewenstein & Nachum Sicherman, Do Workers Prefer Increasing Wage Profiles?, 9 J. Lab. Econ. 67, 68 (1991) (reporting that even in careers in which "productivity would seem to be relatively static, workers receive wages that rise substantially with tenure") (citing Robert F. Frank & Robert M. Hutchens, Feeling Good vs. Feeling Better: A Life-Cycle Theory of Wages (1988) (unpublished working paper, Cornell University, Department of Economics)); James L. Medoff & Katharine G. Abraham, Are Those Paid More Really More Productive? The Case of Experience, 16 J. Hum. Resources 186, 186 (1981) (summarizing results of empirical study showing that experience cannot adequately explain experience-earnings profile); Jacob Mincer & Boyan Jovanovic, Labor Mobility and Wages, in Studies in Labor Markets 21, 25-28 (Sherwin Rosen ed., 1981) (finding that wages within firm rise relative to alternative opportunities as job seniority increases); see also Stewart J. Schwab, Life-Cycle Justice: Accommodating Just Cause and Employment at Will, 92 Mich. L. Rev. 8, 11 (1993) (using life-cycle employment model to argue that contract protections should be provided for employees at beginning and end of cycle); Michael L. Wachter & George M. Cohen, The Law and Economics of Collective Bargaining: An Introduction and Application to the Problems of Subcontracting, Partial Closure, and Relocation, 136 U. Pa. L. Rev. 1349, 1356-64 (1988) (using life-cycle model of employment to analyze efficiency of internal labor markets). But see J. Hoult Verkerke, An Empirical Perspective on Indefinite Term Employment Contracts: Resolving the Just Cause Debate, 1995 Wis. L. Rev. 837, 912-13 (1995) (arguing that these implicit commitments should not be basis for implied contractual obligations).
39. This implicit contract was first described by Edward Lazear. See Edward P. Lazear, Why Is There Mandatory Retirement?, 87 J. Pol. Econ. 1261, 1262 (1979) (developing what is now recognized as the life-cycle model). Lazear's model of life-cycle employment has been generally accepted, receiving much empirical support. See, e.g., Robert Hutchens, Delayed Payment Contracts and a Firm's Propensity to Fire Older Workers, 4 J. Lab. Econ. 439, 440 (1986) (determining that certain jobs for which older workers are employed but not hired have characteristics associated with delayed payment contracts, in accordance with Lazear's life-cycle model); George Loewenstein & Nachum Sicherman, Do Workers Prefer Increasing Wage Profiles?, 9 J. Lab. Econ. 67, 68 (1991) (reporting that even in careers in which "productivity would seem to be relatively static, workers receive wages that rise substantially with tenure") (citing Robert F. Frank & Robert M. Hutchens, Feeling Good vs. Feeling Better: A Life-Cycle Theory of Wages (1988) (unpublished working paper, Cornell University, Department of Economics)); James L. Medoff & Katharine G. Abraham, Are Those Paid More Really More Productive? The Case of Experience, 16 J. Hum. Resources 186, 186 (1981) (summarizing results of empirical study showing that experience cannot adequately explain experience-earnings profile); Jacob Mincer & Boyan Jovanovic, Labor Mobility and Wages, in Studies in Labor Markets 21, 25-28 (Sherwin Rosen ed., 1981) (finding that wages within firm rise relative to alternative opportunities as job seniority increases); see also Stewart J. Schwab, Life-Cycle Justice: Accommodating Just Cause and Employment at Will, 92 Mich. L. Rev. 8, 11 (1993) (using life-cycle employment model to argue that contract protections should be provided for employees at beginning and end of cycle); Michael L. Wachter & George M. Cohen, The Law and Economics of Collective Bargaining: An Introduction and Application to the Problems of Subcontracting, Partial Closure, and Relocation, 136 U. Pa. L. Rev. 1349, 1356-64 (1988) (using life-cycle model of employment to analyze efficiency of internal labor markets). But see J. Hoult Verkerke, An Empirical Perspective on Indefinite Term Employment Contracts: Resolving the Just Cause Debate, 1995 Wis. L. Rev. 837, 912-13 (1995) (arguing that these implicit commitments should not be basis for implied contractual obligations).
40. This implicit contract was first described by Edward Lazear. See Edward P. Lazear, Why Is There Mandatory Retirement?, 87 J. Pol. Econ. 1261, 1262 (1979) (developing what is now recognized as the life-cycle model). Lazear's model of life-cycle employment has been generally accepted, receiving much empirical support. See, e.g., Robert Hutchens, Delayed Payment Contracts and a Firm's Propensity to Fire Older Workers, 4 J. Lab. Econ. 439, 440 (1986) (determining that certain jobs for which older workers are employed but not hired have characteristics associated with delayed payment contracts, in accordance with Lazear's life-cycle model); George Loewenstein & Nachum Sicherman, Do Workers Prefer Increasing Wage Profiles?, 9 J. Lab. Econ. 67, 68 (1991) (reporting that even in careers in which "productivity would seem to be relatively static, workers receive wages that rise substantially with tenure") (citing Robert F. Frank & Robert M. Hutchens, Feeling Good vs. Feeling Better: A Life-Cycle Theory of Wages (1988) (unpublished working paper, Cornell University, Department of Economics)); James L. Medoff & Katharine G. Abraham, Are Those Paid More Really More Productive? The Case of Experience, 16 J. Hum. Resources 186, 186 (1981) (summarizing results of empirical study showing that experience cannot adequately explain experience-earnings profile); Jacob Mincer & Boyan Jovanovic, Labor Mobility and Wages, in Studies in Labor Markets 21, 25-28 (Sherwin Rosen ed., 1981) (finding that wages within firm rise relative to alternative opportunities as job seniority increases); see also Stewart J. Schwab, Life-Cycle Justice: Accommodating Just Cause and Employment at Will, 92 Mich. L. Rev. 8, 11 (1993) (using life-cycle employment model to argue that contract protections should be provided for employees at beginning and end of cycle); Michael L. Wachter & George M. Cohen, The Law and Economics of Collective Bargaining: An Introduction and Application to the Problems of Subcontracting, Partial Closure, and Relocation, 136 U. Pa. L. Rev. 1349, 1356-64 (1988) (using life-cycle model of employment to analyze efficiency of internal labor markets). But see J. Hoult Verkerke, An Empirical Perspective on Indefinite Term Employment Contracts: Resolving the Just Cause Debate, 1995 Wis. L. Rev. 837, 912-13 (1995) (arguing that these implicit commitments should not be basis for implied contractual obligations).
41. This implicit contract was first described by Edward Lazear. See Edward P. Lazear, Why Is There Mandatory Retirement?, 87 J. Pol. Econ. 1261, 1262 (1979) (developing what is now recognized as the life-cycle model). Lazear's model of life-cycle employment has been generally accepted, receiving much empirical support. See, e.g., Robert Hutchens, Delayed Payment Contracts and a Firm's Propensity to Fire Older Workers, 4 J. Lab. Econ. 439, 440 (1986) (determining that certain jobs for which older workers are employed but not hired have characteristics associated with delayed payment contracts, in accordance with Lazear's life-cycle model); George Loewenstein & Nachum Sicherman, Do Workers Prefer Increasing Wage Profiles?, 9 J. Lab. Econ. 67, 68 (1991) (reporting that even in careers in which "productivity would seem to be relatively static, workers receive wages that rise substantially with tenure") (citing Robert F. Frank & Robert M. Hutchens, Feeling Good vs. Feeling Better: A Life-Cycle Theory of Wages (1988) (unpublished working paper, Cornell University, Department of Economics)); James L. Medoff & Katharine G. Abraham, Are Those Paid More Really More Productive? The Case of Experience, 16 J. Hum. Resources 186, 186 (1981) (summarizing results of empirical study showing that experience cannot adequately explain experience-earnings profile); Jacob Mincer & Boyan Jovanovic, Labor Mobility and Wages, in Studies in Labor Markets 21, 25-28 (Sherwin Rosen ed., 1981) (finding that wages within firm rise relative to alternative opportunities as job seniority increases); see also Stewart J. Schwab, Life-Cycle Justice: Accommodating Just Cause and Employment at Will, 92 Mich. L. Rev. 8, 11 (1993) (using life-cycle employment model to argue that contract protections should be provided for employees at beginning and end of cycle); Michael L. Wachter & George M. Cohen, The Law and Economics of Collective Bargaining: An Introduction and Application to the Problems of Subcontracting, Partial Closure, and Relocation, 136 U. Pa. L. Rev. 1349, 1356-64 (1988) (using life-cycle model of employment to analyze efficiency of internal labor markets). But see J. Hoult Verkerke, An Empirical Perspective on Indefinite Term Employment Contracts: Resolving the Just Cause Debate, 1995 Wis. L. Rev. 837, 912-13 (1995) (arguing that these implicit commitments should not be basis for implied contractual obligations).
42. This implicit contract was first described by Edward Lazear. See Edward P. Lazear, Why Is There Mandatory Retirement?, 87 J. Pol. Econ. 1261, 1262 (1979) (developing what is now recognized as the life-cycle model). Lazear's model of life-cycle employment has been generally accepted, receiving much empirical support. See, e.g., Robert Hutchens, Delayed Payment Contracts and a Firm's Propensity to Fire Older Workers, 4 J. Lab. Econ. 439, 440 (1986) (determining that certain jobs for which older workers are employed but not hired have characteristics associated with delayed payment contracts, in accordance with Lazear's life-cycle model); George Loewenstein & Nachum Sicherman, Do Workers Prefer Increasing Wage Profiles?, 9 J. Lab. Econ. 67, 68 (1991) (reporting that even in careers in which "productivity would seem to be relatively static, workers receive wages that rise substantially with tenure") (citing Robert F. Frank & Robert M. Hutchens, Feeling Good vs. Feeling Better: A Life-Cycle Theory of Wages (1988) (unpublished working paper, Cornell University, Department of Economics)); James L. Medoff & Katharine G. Abraham, Are Those Paid More Really More Productive? The Case of Experience, 16 J. Hum. Resources 186, 186 (1981) (summarizing results of empirical study showing that experience cannot adequately explain experience-earnings profile); Jacob Mincer & Boyan Jovanovic, Labor Mobility and Wages, in Studies in Labor Markets 21, 25-28 (Sherwin Rosen ed., 1981) (finding that wages within firm rise relative to alternative opportunities as job seniority increases); see also Stewart J. Schwab, Life-Cycle Justice: Accommodating Just Cause and Employment at Will, 92 Mich. L. Rev. 8, 11 (1993) (using life-cycle employment model to argue that contract protections should be provided for employees at beginning and end of cycle); Michael L. Wachter & George M. Cohen, The Law and Economics of Collective Bargaining: An Introduction and Application to the Problems of Subcontracting, Partial Closure, and Relocation, 136 U. Pa. L. Rev. 1349, 1356-64 (1988) (using life-cycle model of employment to analyze efficiency of internal labor markets). But see J. Hoult Verkerke, An Empirical Perspective on Indefinite Term Employment Contracts: Resolving the Just Cause Debate, 1995 Wis. L. Rev. 837, 912-13 (1995) (arguing that these implicit commitments should not be basis for implied contractual obligations).
43. This concept is at the heart of the charge that unions inevitably seek monopoly rents by introducing a cartel in the labor market. See Richard A. Posner, Some Economics of Labor Law, 51 U. Chi. L. Rev. 988, 990 (1986) (arguing that "American labor law is best understood as a device for facilitating . . . the cartelization of the labor supply by unions"). This argument is somewhat undercut by matching actual union contracts to the career-wage pattern favored by both employees and many employers. See Richard B. Freeman & James L. Medoff, What Do Unions Do? 9-10 (1984); Paul C. Weiler, Governing the Workplace: The Future of Labor and Employment Law 74-76 (1990).
44. This concept is at the heart of the charge that unions inevitably seek monopoly rents by introducing a cartel in the labor market. See Richard A. Posner, Some Economics of Labor Law, 51 U. Chi. L. Rev. 988, 990 (1986) (arguing that "American labor law is best understood as a device for facilitating . . . the cartelization of the labor supply by unions"). This argument is somewhat undercut by matching actual union contracts to the career-wage pattern favored by both employees and many employers. See Richard B. Freeman & James L. Medoff, What Do Unions Do? 9-10 (1984); Paul C. Weiler, Governing the Workplace: The Future of Labor and Employment Law 74-76 (1990).
45. This concept is at the heart of the charge that unions inevitably seek monopoly rents by introducing a cartel in the labor market. See Richard A. Posner, Some Economics of Labor Law, 51 U. Chi. L. Rev. 988, 990 (1986) (arguing that "American labor law is best understood as a device for facilitating . . . the cartelization of the labor supply by unions"). This argument is somewhat undercut by matching actual union contracts to the career-wage pattern favored by both employees and many employers. See Richard B. Freeman & James L. Medoff, What Do Unions Do? 9-10 (1984); Paul C. Weiler, Governing the Workplace: The Future of Labor and Employment Law 74-76 (1990).
46. See Lazear, supra note 33, at 1264.
47. See id.
48. See id.; see also Samuel Issacharoff, Contractual Liberties in Discriminatory Markets, 70 Tex. L. Rev. 1219, 1248 (1992) (describing mandatory retirement as "integral element of a long-term contractual relationship").
49. One of the consequences of the end of mandatory retirement in academia has been renewed attention to periodic reviews of productivity throughout a professor's career. For example, the Texas A&M Board of Regents directed all 10 schools in the system to draft policies for removal of tenured professors whose annual reviews reflected poor performance. One draft by the Texas A&M University Faculty Senate proposed that professors be given six years to improve their performance before being fired. See A. Phillips Brooks, Tenure, Academia's Inviolable Code, Becomes Legislative Target, Austin Am. Statesman, July 8, 1996, at A1 (discussing allegations that legislative proposal to eliminate tenure would hurt Texas's universities' ability to hire best and brightest faculty); see also Nancy Youssef, U. Va. Wants More Reviews of Tenured Professors, The Virginian-Pilot, Apr. 23, 1995, at B3 (discussing University of Virginia proposal to review tenured professors every six years).
50. One of the consequences of the end of mandatory retirement in academia has been renewed attention to periodic reviews of productivity throughout a professor's career. For example, the Texas A&M Board of Regents directed all 10 schools in the system to draft policies for removal of tenured professors whose annual reviews reflected poor performance. One draft by the Texas A&M University Faculty Senate proposed that professors be given six years to improve their performance before being fired. See A. Phillips Brooks, Tenure, Academia's Inviolable Code, Becomes Legislative Target, Austin Am. Statesman, July 8, 1996, at A1 (discussing allegations that legislative proposal to eliminate tenure would hurt Texas's universities' ability to hire best and brightest faculty); see also Nancy Youssef, U. Va. Wants More Reviews of Tenured Professors, The Virginian-Pilot, Apr. 23, 1995, at B3 (discussing University of Virginia proposal to review tenured professors every six years).
51. See, e.g., Lazear, supra note 33, at 1264; Schwab, supra note 33, at 17.
52. See, e.g., Lazear, supra note 33, at 1264; Schwab, supra note 33, at 17.
53. See Loewenstein & Sicherman, supra note 33, at 68. In experimental settings, Professors Loewenstein and Sicherman found that subjects placed in the position of new hires preferred an upwardly sloping wage scale even when clearly confronted with a situation in which the deferral of payment had negative aggregate effects because employees would be foregoing the time value of money paid immediately. See id. at 75.
54. See Paulette Thomas, Restructurings Generate Rash of Age-Bias Suits, Wall St. J., Aug. 29, 1996, at B1.
55. Id. (alteration in original).
56. An interesting example comes with demands for long-term contracts in professional sports. At their peak, sports stars routinely seek long-term contracts to protect against the risk of injury and to continue compensation even as their skills begin to decline. Teams, particularly those operating under salary caps, are quite eager to defer payment. For example, teams that want to keep their stars often give them the long-term contracts they demand but use a variety of methods including signing bonuses and structured payouts to insure that they will have room under the cap in the future. See Andrew E. Serwer, How High?, Sports Illustrated, Nov. 8, 1993, at 88, 88 (reporting terms of NBA forward Larry Johnson's 12-year, $84 million contract with Charlotte Hornets). These long-term obligations become an issue when teams attempt to trade aging stars. The result is that younger players with shorter-term contracts are more marketable than older players with several years left on sizeable contracts. See Clifton Brown, Davis Traded by Knicks to Raptors for '97 Pick, N.Y. Times, July 25, 1996, at B13 (reporting efforts of Knicks to trade excess shooting guard and ability to trade Hubert Davis with one remaining contract year rather than John Starks with four remaining contract years).
57. An interesting example comes with demands for long-term contracts in professional sports. At their peak, sports stars routinely seek long-term contracts to protect against the risk of injury and to continue compensation even as their skills begin to decline. Teams, particularly those operating under salary caps, are quite eager to defer payment. For example, teams that want to keep their stars often give them the long-term contracts they demand but use a variety of methods including signing bonuses and structured payouts to insure that they will have room under the cap in the future. See Andrew E. Serwer, How High?, Sports Illustrated, Nov. 8, 1993, at 88, 88 (reporting terms of NBA forward Larry Johnson's 12-year, $84 million contract with Charlotte Hornets). These long-term obligations become an issue when teams attempt to trade aging stars. The result is that younger players with shorter-term contracts are more marketable than older players with several years left on sizeable contracts. See Clifton Brown, Davis Traded by Knicks to Raptors for '97 Pick, N.Y. Times, July 25, 1996, at B13 (reporting efforts of Knicks to trade excess shooting guard and ability to trade Hubert Davis with one remaining contract year rather than John Starks with four remaining contract years).
58. See John J. Donohue III & Peter Siegelman, The Changing Nature of Employment Discrimination Litigation, 43 Stan. L. Rev. 983, 984 (1991) ("Although the authors and early architects of employment discrimination laws envisioned them as tools for opening employment opportunities to blacks, women, and other minorities, this is no longer their primary use. Instead, the antidiscrimination laws are predominantly used to protect the existing positions of incumbent workers."); Rutherglen, supra note 20, at 495 ("[M]ost claims of employment discrimination are now claims of discriminatory discharge. Litigation under the ADEA, which concerns such claims almost exclusively, exemplifies this trend in its most extreme form.").
59. See John J. Donohue III & Peter Siegelman, The Changing Nature of Employment Discrimination Litigation, 43 Stan. L. Rev. 983, 984 (1991) ("Although the authors and early architects of employment discrimination laws envisioned them as tools for opening employment opportunities to blacks, women, and other minorities, this is no longer their primary use. Instead, the antidiscrimination laws are predominantly used to protect the existing positions of incumbent workers."); Rutherglen, supra note 20, at 495 ("[M]ost claims of employment discrimination are now claims of discriminatory discharge. Litigation under the ADEA, which concerns such claims almost exclusively, exemplifies this trend in its most extreme form.").
60. See Michael Schuster & Christopher S. Miller, An Empirical Assessment of the Age Discrimination in Employment Act, 38 Indus. & Lab. Rel. Rev. 64, 64 (1984).
61. See Cathie A. Shattuck, ADEA Litigation Survey (1983), reprinted in Recipients of ADEA Settlements Are Mostly Long-Term Male Employees, 7 Daily Lab. Rep. (BNA) A-3 (Jan. 12, 1984); see also Billie Brandon & Robert A. Snyder, ADEA Update: Case Law And "Cost" as a Defense, Personnel Admin., Feb. 1985, at 116, 117-18 (finding similar results: termination - 73% (discharge - 56% and involuntary retirement - 17%); refusal to hire - 7%; failure to promote - 8%; demotion - 5%; involuntary transfer - 2%; employment conditions - 5%).
62. See Cathie A. Shattuck, ADEA Litigation Survey (1983), reprinted in Recipients of ADEA Settlements Are Mostly Long-Term Male Employees, 7 Daily Lab. Rep. (BNA) A-3 (Jan. 12, 1984); see also Billie Brandon & Robert A. Snyder, ADEA Update: Case Law And "Cost" as a Defense, Personnel Admin., Feb. 1985, at 116, 117-18 (finding similar results: termination - 73% (discharge - 56% and involuntary retirement - 17%); refusal to hire - 7%; failure to promote - 8%; demotion - 5%; involuntary transfer - 2%; employment conditions - 5%).
63. See Cathie A. Shattuck, ADEA Litigation Survey (1983), reprinted in Recipients of ADEA Settlements Are Mostly Long-Term Male Employees, 7 Daily Lab. Rep. (BNA) A-3 (Jan. 12, 1984); see also Billie Brandon & Robert A. Snyder, ADEA Update: Case Law And "Cost" as a Defense, Personnel Admin., Feb. 1985, at 116, 117-18 (finding similar results: termination - 73% (discharge - 56% and involuntary retirement - 17%); refusal to hire - 7%; failure to promote - 8%; demotion - 5%; involuntary transfer - 2%; employment conditions - 5%).
64. Age Discrimination in Employment Amendments of 1986, Pub. L. No. 99-592, § 2, 100 Stat. 3342, 3342 (1986) (codified as amended at 29 U.S.C. § 623 (1994)).
65. See Christine Jolis, Hands-lying and the Age Discrimination in Employment Act, 74 Tex. L. Rev. 1813, 1821, 1830 (1996) (describing cost-based decisionmaking phenomenon at later stages of employment); Schwab, supra note 33, at 19 (noting that late-stage employees are paid more than they produce and become vulnerable to opportunistic firing).
66. Richard Posner uncharacteristically misses this point in his insightful work on the effects of aging. He dismisses arguments in favor of the ADEA by claiming that "employers have their own incentives, unrelated to law, to avoid firing competent employees of any age, even if replacements are available. The employer has invested in the employee, and if the employee is still productive the employer is continuing to earn a return on the investment." Richard A. Posner, Aging and Old Age 334 (1995). Posner errs by confusing the concept of "productivity" with "profitability," the latter being adversely affected by the upward slope of the career-wage trajectory. As Christine Jolis clearly expresses, "[w]hen wages rise above marginal revenue product . . . the individual is no longer profitable, though from the employee's standpoint the high wages are simply restitution for low wages earned early on." Jolis, supra note 48, at 1821.
67. Richard Posner uncharacteristically misses this point in his insightful work on the effects of aging. He dismisses arguments in favor of the ADEA by claiming that "employers have their own incentives, unrelated to law, to avoid firing competent employees of any age, even if replacements are available. The employer has invested in the employee, and if the employee is still productive the employer is continuing to earn a return on the investment." Richard A. Posner, Aging and Old Age 334 (1995). Posner errs by confusing the concept of "productivity" with "profitability," the latter being adversely affected by the upward slope of the career-wage trajectory. As Christine Jolis clearly expresses, "[w]hen wages rise above marginal revenue product . . . the individual is no longer profitable, though from the employee's standpoint the high wages are simply restitution for low wages earned early on." Jolis, supra note 48, at 1821.
68. The importance of reputation is summarized as follows: "[I]n the absence of an explicit contract, applicants will seek information from other workers about the employer's past performance. Applicants are obliged to judge the employer, in part, by reputation." Arthur M. Okun, Prices and Quantities: A Macroeconomic Analysis 51 (1981); see also Oliver E. Williamson, The Economic Institutions of Capitalism 259-61 (1985); Bengt Holmstrom, Contractual Models of the Labor Market, 7 Am. Econ. Rev. 308, 311-13 (1981).
69. The importance of reputation is summarized as follows: "[I]n the absence of an explicit contract, applicants will seek information from other workers about the employer's past performance. Applicants are obliged to judge the employer, in part, by reputation." Arthur M. Okun, Prices and Quantities: A Macroeconomic Analysis 51 (1981); see also Oliver E. Williamson, The Economic Institutions of Capitalism 259-61 (1985); Bengt Holmstrom, Contractual Models of the Labor Market, 7 Am. Econ. Rev. 308, 311-13 (1981).
70. The importance of reputation is summarized as follows: "[I]n the absence of an explicit contract, applicants will seek information from other workers about the employer's past performance. Applicants are obliged to judge the employer, in part, by reputation." Arthur M. Okun, Prices and Quantities: A Macroeconomic Analysis 51 (1981); see also Oliver E. Williamson, The Economic Institutions of Capitalism 259-61 (1985); Bengt Holmstrom, Contractual Models of the Labor Market, 7 Am. Econ. Rev. 308, 311-13 (1981).
71. For an example of a defense of employment at will on the grounds that reputational interests of employers make cheating unlikely, see generally Richard A. Epstein, In Defense of the Contract at Will, 51 U. ChL L. Rev. 947 (1984).
72. For arguments that the reputational interests of employers are insufficient to overcome the temptation of opportunistic discharges, see Freeman & Medoff, supra note 34, at 9-10; Walter Kamiat, Labor and Lemons: Efficient Norms in the Internal Labor Market and the Possible Failures of Individual Contracting, 144 U. Pa. L. Rev. 1953, 1970 n.27 (1996); Schwab, supra note 33, at 26-27; Weiler, supra note 34, at 74-76. For a defense of the ADEA as a prohibition on such opportunistic discharges, see Jolis, supra note 48, at 1829-40.
73. For arguments that the reputational interests of employers are insufficient to overcome the temptation of opportunistic discharges, see Freeman & Medoff, supra note 34, at 9-10; Walter Kamiat, Labor and Lemons: Efficient Norms in the Internal Labor Market and the Possible Failures of Individual Contracting, 144 U. Pa. L. Rev. 1953, 1970 n.27 (1996); Schwab, supra note 33, at 26-27; Weiler, supra note 34, at 74-76. For a defense of the ADEA as a prohibition on such opportunistic discharges, see Jolis, supra note 48, at 1829-40.
74. For arguments that the reputational interests of employers are insufficient to overcome the temptation of opportunistic discharges, see Freeman & Medoff, supra note 34, at 9-10; Walter Kamiat, Labor and Lemons: Efficient Norms in the Internal Labor Market and the Possible Failures of Individual Contracting, 144 U. Pa. L. Rev. 1953, 1970 n.27 (1996); Schwab, supra note 33, at 26-27; Weiler, supra note 34, at 74-76. For a defense of the ADEA as a prohibition on such opportunistic discharges, see Jolis, supra note 48, at 1829-40.
75. For arguments that the reputational interests of employers are insufficient to overcome the temptation of opportunistic discharges, see Freeman & Medoff, supra note 34, at 9-10; Walter Kamiat, Labor and Lemons: Efficient Norms in the Internal Labor Market and the Possible Failures of Individual Contracting, 144 U. Pa. L. Rev. 1953, 1970 n.27 (1996); Schwab, supra note 33, at 26-27; Weiler, supra note 34, at 74-76. For a defense of the ADEA as a prohibition on such opportunistic discharges, see Jolis, supra note 48, at 1829-40.
76. For arguments that the reputational interests of employers are insufficient to overcome the temptation of opportunistic discharges, see Freeman & Medoff, supra note 34, at 9-10; Walter Kamiat, Labor and Lemons: Efficient Norms in the Internal Labor Market and the Possible Failures of Individual Contracting, 144 U. Pa. L. Rev. 1953, 1970 n.27 (1996); Schwab, supra note 33, at 26-27; Weiler, supra note 34, at 74-76. For a defense of the ADEA as a prohibition on such opportunistic discharges, see Jolis, supra note 48, at 1829-40.
77. O'Meara, supra note 18, at 27.
78. See Posner, supra note 49, at 329 (arguing that monetary amounts and chances of winning are higher in discharge cases).
79. See O'Meara, supra note 18, at 27-28.
80. See Brandon & Snyder, supra note 46, at 41; Shattuck, supra note 46, at A-3.
81. See Brandon & Snyder, supra note 46, at 41; Shattuck, supra note 46, at A-3.
82. For a discussion of the interruption in career-term employment caused by childbirth and childrearing by women, see generally Samuel Issacharoff & Elyse Rosenblum, Women and the Workplace: Accommodating the Demands of Pregnancy, 94 Colum. L. Rev. 2154 (1994).
83. See Shattuck, supra note 46, at A-3.
84. This proposition is advanced in Posner, supra note 49, at 344.
85. See Schuster & Miller, supra note 45, at 68 (inferring from infrequency of reported decisions mentioning plaintiff's race that most are white); see also Rutherglen, supra note 20, at 496 (providing data showing that large majority of ADEA plaintiffs are white).
86. See Schuster & Miller, supra note 45, at 68 (inferring from infrequency of reported decisions mentioning plaintiff's race that most are white); see also Rutherglen, supra note 20, at 496 (providing data showing that large majority of ADEA plaintiffs are white).
87. See Schuster & Miller, supra note 45, at 68; see also Shattuck, supra note 46, at A-3.
88. See Schuster & Miller, supra note 45, at 68; see also Shattuck, supra note 46, at A-3.
89. See Schuster & Miller, supra note 45, at 68.
90. We leave aside discussion of the apparently rising "contingent workforce" of individuals holding multiple part-time jobs, itinerant positions, or other employment lacking any prospect of lifetime tenure with one employer. See Richard S. Belous, The Rise of the Contingent Work Force: The Key Challenges and Opportunities, 52 Wash. & Lee L. Rev. 863, 868 (1995) (documenting sizable growth of temporary, part-time business service, and self-employed workers between 1980 and 1993, and estimating that 25-30% of workforce employed in contingent, nonpermanent jobs); Jonathan P. Hiatt, Policy Issues Concerning the Contingent Work Force, 52 Wash. & Lee L. Rev. 739, 743-53 (1995) (advocating broadscale legal regulation of contingent employment market); Maria O'Brien Hylton, The Case Against Regulating the Market for Contingent Employment, 52 Wash. & Lee L. Rev. 849, 862 (1995) (arguing that regulation of contingent workforce is likely to be counterproductive due to little indication that regulation will cause incorporation of contingent workers into core workforce). The demographic profile of the ADEA shows that such employees are as unlikely to bring claims under the ADEA as they are under common law wrongful discharge laws. See O'Meara, supra note 18, at 25-26.
91. We leave aside discussion of the apparently rising "contingent workforce" of individuals holding multiple part-time jobs, itinerant positions, or other employment lacking any prospect of lifetime tenure with one employer. See Richard S. Belous, The Rise of the Contingent Work Force: The Key Challenges and Opportunities, 52 Wash. & Lee L. Rev. 863, 868 (1995) (documenting sizable growth of temporary, part-time business service, and self-employed workers between 1980 and 1993, and estimating that 25-30% of workforce employed in contingent, nonpermanent jobs); Jonathan P. Hiatt, Policy Issues Concerning the Contingent Work Force, 52 Wash. & Lee L. Rev. 739, 743-53 (1995) (advocating broadscale legal regulation of contingent employment market); Maria O'Brien Hylton, The Case Against Regulating the Market for Contingent Employment, 52 Wash. & Lee L. Rev. 849, 862 (1995) (arguing that regulation of contingent workforce is likely to be counterproductive due to little indication that regulation will cause incorporation of contingent workers into core workforce). The demographic profile of the ADEA shows that such employees are as unlikely to bring claims under the ADEA as they are under common law wrongful discharge laws. See O'Meara, supra note 18, at 25-26.
92. We leave aside discussion of the apparently rising "contingent workforce" of individuals holding multiple part-time jobs, itinerant positions, or other employment lacking any prospect of lifetime tenure with one employer. See Richard S. Belous, The Rise of the Contingent Work Force: The Key Challenges and Opportunities, 52 Wash. & Lee L. Rev. 863, 868 (1995) (documenting sizable growth of temporary, part-time business service, and self-employed workers between 1980 and 1993, and estimating that 25-30% of workforce employed in contingent, nonpermanent jobs); Jonathan P. Hiatt, Policy Issues Concerning the Contingent Work Force, 52 Wash. & Lee L. Rev. 739, 743-53 (1995) (advocating broadscale legal regulation of contingent employment market); Maria O'Brien Hylton, The Case Against Regulating the Market for Contingent Employment, 52 Wash. & Lee L. Rev. 849, 862 (1995) (arguing that regulation of contingent workforce is likely to be counterproductive due to little indication that regulation will cause incorporation of contingent workers into core workforce). The demographic profile of the ADEA shows that such employees are as unlikely to bring claims under the ADEA as they are under common law wrongful discharge laws. See O'Meara, supra note 18, at 25-26.
93. We leave aside discussion of the apparently rising "contingent workforce" of individuals holding multiple part-time jobs, itinerant positions, or other employment lacking any prospect of lifetime tenure with one employer. See Richard S. Belous, The Rise of the Contingent Work Force: The Key Challenges and Opportunities, 52 Wash. & Lee L. Rev. 863, 868 (1995) (documenting sizable growth of temporary, part-time business service, and self-employed workers between 1980 and 1993, and estimating that 25-30% of workforce employed in contingent, nonpermanent jobs); Jonathan P. Hiatt, Policy Issues Concerning the Contingent Work Force, 52 Wash. & Lee L. Rev. 739, 743-53 (1995) (advocating broadscale legal regulation of contingent employment market); Maria O'Brien Hylton, The Case Against Regulating the Market for Contingent Employment, 52 Wash. & Lee L. Rev. 849, 862 (1995) (arguing that regulation of contingent workforce is likely to be counterproductive due to little indication that regulation will cause incorporation of contingent workers into core workforce). The demographic profile of the ADEA shows that such employees are as unlikely to bring claims under the ADEA as they are under common law wrongful discharge laws. See O'Meara, supra note 18, at 25-26.
94. O'Meara, supra note 18, at 48; see also Jolis, supra note 48, at 1829-40 (justifying ADEA as protection against late-career opportunism); Rutherglen, supra note 20, at 496 (noting that justifications for the ADEA "have a surprising resemblance to the justification for recognizing claims for wrongful discharge").
95. O'Meara, supra note 18, at 48; see also Jolis, supra note 48, at 1829-40 (justifying ADEA as protection against late-career opportunism); Rutherglen, supra note 20, at 496 (noting that justifications for the ADEA "have a surprising resemblance to the justification for recognizing claims for wrongful discharge").
96. O'Meara, supra note 18, at 48; see also Jolis, supra note 48, at 1829-40 (justifying ADEA as protection against late-career opportunism); Rutherglen, supra note 20, at 496 (noting that justifications for the ADEA "have a surprising resemblance to the justification for recognizing claims for wrongful discharge").
97. See Schwab, supra note 33, at 43.
98. See id. ("At the end of their lifecycle, they often earn more than their current productivity. If they do, the employer has a financial incentive to terminate them . . . . The Age Discrimination in Employment Act provides one check against late-career opportunism."); see also Cynthia L. Estlund, Wrongful Discharge Protections in an At-Will World, 74 Tex. L. Rev. 1655, 1671-74 (1996) (describing pressure on antidiscrimination statutes from discharged employees lacking other means of redress).
99. Donohue & Siegelman, supra note 44, at 984.
100. Id.
101. 438 U.S. 567 (1978).
102. Id. at 577 (citation omitted).
103. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973) (setting forth burden shifting under Title VII disparate treatment claims). But see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-12 (1993) (restricting McDonnell Douglas burden shifting by forcing plaintiff to prove ultimate issue of discriminatory treatment even where defendant has failed to discharge intermediate burden of production); Deborah C. Malamud, The Last Minuet: Disparate Treatment After Hicks, 93 Mich. L. Rev. 2229, 2232-35 (1995) (describing shift in Hicks).
104. Almost immediately after the decision in Furnco, courts began to question the applicability of a strict McDonnell Douglas test to age discrimination cases. As expressed by the Sixth Circuit, "[t]his factor of progression and replacement is not necessarily involved in cases involving the immutable characteristics of race, sex, and national origin. . . . Thus we do not believe that Congress intended automatic presumptions to apply whenever a worker is replaced by another of a different age." Laugesen v. Anaconda Co., 510 F.2d 307, 313 n.4 (6th Cir. 1975); see also Kelly v. American Standard, Inc., 640 F.2d 974, 980 (9th Cir. 1981) (holding that replacement of older employee by younger employee does not raise same presumption of discrimination as replacement of black employee by white employee). As a general matter courts developed a more demanding application of evidentiary presumptions in age cases. The resulting standard requires a plaintiff to establish a "nexus" that directly ties the age of the complainant to the complained of conduct, rather than a mere showing that an employee from a protected class was displaced. See Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 238-41 (4th Cir. 1982) (developing nexus test). In O'Connor v. Consolidated Coin Caterers Corp., 116 S. Ct. 1307 (1996), the Supreme Court recently ruled that in order to establish a prima facie case, an ADEA plaintiff alleging unlawful discharge could not satisfy his prima facie burden merely by showing that he was replaced by an employee under 40. See id. at 1310. For example, a displaced 40-year-old employee could not satisfy his initial burden by showing that he was replaced by a 39-year-old from outside the protected class. Rather, the ADEA plaintiff must show that his replacement is "substantially younger." This holding contrasts with the McDonnell Douglas regime in place for other discrimination claims requiring proof that a discharged employee was replaced by someone from outside the protected class.
105. See, e.g., United States v. Virginia, 44 F.3d 1229, 1235 (4th Cir. 1995) (noting that classifications based on gender are held to heightened level of scrutiny).
106. This concept of state action that is comprehensible only on the grounds of class-based animus was the rationale by which the Supreme Court struck down a Colorado constitutional amendment limiting conferral of legal benefits to homosexuals. See Romer v. Evans, 116 S. Ct. 1620, 1623 (1996). The Court did so despite the fact that homosexuals as such do not enjoy constitutional protection as a discrete and insular group. See generally Bowers v. Hardwick, 478 U.S. 126 (1986).
107. 427 U.S. 307 (1976) (per curiam).
108. Id. at 313-14 (citation omitted).
109. Rutherglen, supra note 20, at 521.
110. See, e.g., Potenze v. New York Shipping Ass'n, 804 F.2d 235, 238 (2d Cir. 1986) (ruling that plan that offset Social Security benefits for those workers over 65 choosing to participate in employee retirement incentive program (ERIP) was not subterfuge because plan was justified by legitimate business reasons); Cipriano v. Board of Educ., 785 F.2d 51, 57-58 (2d Cir. 1986) (reasoning that ERIP with age ceiling would not constitute subterfuge to avoid ADEA if employer could provide legitimate reason for excluding workers over 60 from participating); Crosland v. Charlotte Eye, Ear & Throat Hosp., 686 F.2d 208, 215 (4th Cir. 1982) (holding that provision excluding workers over 55 from pension plan was not illegal if "the provision was motivated by a legitimate business or economic purpose which, objectively assessed, reasonably justified it"); see also 29 U.S.C. § 623(f)(2)(B) (1994) (allowing age-based discrimination when observing terms of bona fide employee benefit plan).
111. 507 U.S. 604 (1993).
112. Id. at 609.
113. For an excellent discussion of the tension in ADEA law after Hazen, see Robert J. Gregory, There is Life in That Old (I Mean, More "Senior") Dog Yet: The Age-Proxy Theory After Hazen Paper Co. v. Biggins, 11 Hofstra Lab. L.J. 391, 427 (1994) (arguing that many ADEA claims cannot survive unless plaintiffs can rely on proxy theory to "challenge employment criteria that can readily mask age discrimination").
114. See OWBPA Hearings, supra note 22, at 420 (introductory remarks of Sen. Metzenbaum) (describing reformed ADEA as "this Nation's fundamental civil rights law safeguarding older Americans in the workplace").
115. See Posner, supra note 49, at 330 (citing EEOC reports); Bimal Patel & Brian H. Kleiner, New Developments in Age Discrimination, 45 Lab. L.J. 709, 712 (1994) (reviewing EEOC filing data from 1989-1993, originally compiled in Sara Marley, Age-Related Suits Increase, Bus. Ins., Jan. 17, 1994, at 1, 1); Rutherglen, supra note 20, at 507-08 (producing tables recording charges filed with EEOC); see also Jolis, supra note 48, at 1814 (reviewing data).
116. See Posner, supra note 49, at 330 (citing EEOC reports); Bimal Patel & Brian H. Kleiner, New Developments in Age Discrimination, 45 Lab. L.J. 709, 712 (1994) (reviewing EEOC filing data from 1989-1993, originally compiled in Sara Marley, Age-Related Suits Increase, Bus. Ins., Jan. 17, 1994, at 1, 1); Rutherglen, supra note 20, at 507-08 (producing tables recording charges filed with EEOC); see also Jolis, supra note 48, at 1814 (reviewing data).
117. See Posner, supra note 49, at 330 (citing EEOC reports); Bimal Patel & Brian H. Kleiner, New Developments in Age Discrimination, 45 Lab. L.J. 709, 712 (1994) (reviewing EEOC filing data from 1989-1993, originally compiled in Sara Marley, Age-Related Suits Increase, Bus. Ins., Jan. 17, 1994, at 1, 1); Rutherglen, supra note 20, at 507-08 (producing tables recording charges filed with EEOC); see also Jolis, supra note 48, at 1814 (reviewing data).
118. See Posner, supra note 49, at 330 (citing EEOC reports); Bimal Patel & Brian H. Kleiner, New Developments in Age Discrimination, 45 Lab. L.J. 709, 712 (1994) (reviewing EEOC filing data from 1989-1993, originally compiled in Sara Marley, Age-Related Suits Increase, Bus. Ins., Jan. 17, 1994, at 1, 1); Rutherglen, supra note 20, at 507-08 (producing tables recording charges filed with EEOC); see also Jolis, supra note 48, at 1814 (reviewing data).
119. See Posner, supra note 49, at 330 (citing EEOC reports); Bimal Patel & Brian H. Kleiner, New Developments in Age Discrimination, 45 Lab. L.J. 709, 712 (1994) (reviewing EEOC filing data from 1989-1993, originally compiled in Sara Marley, Age-Related Suits Increase, Bus. Ins., Jan. 17, 1994, at 1, 1); Rutherglen, supra note 20, at 507-08 (producing tables recording charges filed with EEOC); see also Jolis, supra note 48, at 1814 (reviewing data).
120. Jolis, supra note 48, at 1829. Professor Jolis, however, seems to accept the view that "the ADEA cannot be justified on traditional distributive or rights-based grounds." Id. at 1814.
121. See Schwab, supra note 33, at 43-47; Stewart J. Schwab, Wrongful Discharge Law and the Search for Third-Party Effects, 74 Tex. L. Rev. 1943, 1943-47 (1996) (noting that most states, with the "notable exception of New York," recognize the tort of wrongful discharge if the discharge violated public policy and arguing that analyzing third-party effects is the appropriate method for defining public policy); see also Mark P. Gergen, A Grudging Defense of the Role of the Collateral Torts in Wrongful Termination Litigation,
122. See Schwab, supra note 33, at 43-47; Stewart J. Schwab, Wrongful Discharge Law and the Search for Third-Party Effects, 74 Tex. L. Rev. 1943, 1943-47 (1996) (noting that most states, with the "notable exception of New York," recognize the tort of wrongful discharge if the discharge violated public policy and arguing that analyzing third-party effects is the appropriate method for defining public policy); see also Mark P. Gergen, A Grudging Defense of the Role of the Collateral Torts in Wrongful Termination Litigation,
123. See Schwab, supra note 33, at 43-47; Stewart J. Schwab, Wrongful Discharge Law and the Search for Third-Party Effects, 74 Tex. L. Rev. 1943, 1943-47 (1996) (noting that most states, with the "notable exception of New York," recognize the tort of wrongful discharge if the discharge violated public policy and arguing that analyzing third-party effects is the appropriate method for defining public policy); see also Mark P. Gergen, A Grudging Defense of the Role of the Collateral Torts in Wrongful Termination Litigation,
124. Tex. L. Rev. 1693, 1693 (1996) (defending employees' use of collateral torts such as intentional infliction of emotional distress and defamation on grounds that courts are capable of screening out nonmeritorious claims).
125. See Estlund, supra note 66, at 1657 (arguing that at-will presumption undermines effectiveness of wrongful discharge law and frustrates important policy objectives).
126. See Kamiat, supra note 52, at 1957-68 (suggesting that bargaining impediments between employers and individual employees show current contractual model is "broken").
127. See Wrongful Discharge From Employment Act, Mont. Code Ann. §§ 39-2-901 to 2-915 (1995).
128. See Model Employment Termination Act § 6, 7A U.L.A. 89-90 (Supp. 1996), reprinted in 9A Lab. Rel. Rep. (BNA) § 540:21, at 37-38 (1991). See generally Theodore J. St. Antoine, The Making of the Model Employment Termination Act, 69 Wash. L. Rev. 361, 376-79 (1994) (reporter for Acts Drafting Committee discussing rationale for Act's preference for arbitration as means of enforcement).
129. See Model Employment Termination Act § 6, 7A U.L.A. 89-90 (Supp. 1996), reprinted in 9A Lab. Rel. Rep. (BNA) § 540:21, at 37-38 (1991). See generally Theodore J. St. Antoine, The Making of the Model Employment Termination Act, 69 Wash. L. Rev. 361, 376-79 (1994) (reporter for Acts Drafting Committee discussing rationale for Act's preference for arbitration as means of enforcement).
130. See Model Employment Termination Act § 6, 7A U.L.A. 89-90 (Supp. 1996), reprinted in 9A Lab. Rel. Rep. (BNA) § 540:21, at 37-38 (1991). See generally Theodore J. St. Antoine, The Making of the Model Employment Termination Act, 69 Wash. L. Rev. 361, 376-79 (1994) (reporter for Acts Drafting Committee discussing rationale for Act's preference for arbitration as means of enforcement).
131. See Samuel Issacharoff, Contracting for Employment: The Limited Return of the Common Law, 74 Tex. L. Rev. 1783, 1806-11 (1996) (proposing no-fault severance administrative model).
132. See O'Meara, supra note 18, at 248-51.
133. See 29 U.S.C. § 626(c)(2) (1994) (jury trials); 29 U.S.C. § 626(b) (1994) (liquidated damages); Rutherglen, supra note 20, at 496 (noting ADEA "allowed for the right to jury trial and for liquidated damages - procedures that were not available under Title VII as originally enacted"); see also T. Mark Sandifer, Casenote, No Exclusion for ADEA Claims Under I.R.C. § 104(a)(2): An Analysis of Commissioner v. Schleier, 47 Mercer L. Rev. 637, 640 (1996) ("[U]nlike the pre-1991 version of Title VII, the ADEA provides for jury trials and liquidated damages.").
134. See 29 U.S.C. § 626(c)(2) (1994) (jury trials); 29 U.S.C. § 626(b) (1994) (liquidated damages); Rutherglen, supra note 20, at 496 (noting ADEA "allowed for the right to jury trial and for liquidated damages - procedures that were not available under Title VII as originally enacted"); see also T. Mark Sandifer, Casenote, No Exclusion for ADEA Claims Under I.R.C. § 104(a)(2): An Analysis of Commissioner v. Schleier, 47 Mercer L. Rev. 637, 640 (1996) ("[U]nlike the pre-1991 version of Title VII, the ADEA provides for jury trials and liquidated damages.").
135. See 29 U.S.C. §§ 217, 626(b) (1994); see also Farkas v. New York State Dep't of Health, 554 F. Supp. 24, 28-29 (N.D.N.Y. 1982) (finding plaintiff met test for granting preliminary injunction because he made prima facie showing of age discrimination); Cannister v. FAA, 24 FEP Cases 1621 (D.D.C. 1979) (restraining employer from transferring employees).
136. See, e.g., O'Donnell v. Georgia Osteopathic Hosp., 748 F.2d 1543, 1551 (11th Cir. 1984) (noting that "front pay is an available remedy under the ADEA"); EEOC v. Prudential Fed. Sav. & Loan Ass'n, 741 F.2d 1225, 1232 (10th Cir. 1984) (recognizing future damages), vacated on other grounds, 469 U.S. 1154 (1985); Cancellier v. Federated Dep't Stores, 672 F.2d 1312, 1319 (9th Cir. 1982) (same).
137. See 29 U.S.C. §§ 216(b), 626(b) (1994).
138. See Maureen E. McClain, Litigating an Age Discrimination Case: Special Litigation Problems and Techniques, in Advanced Strategies in Employment Law, 439, 451 (PLI Litig. & Admin. Practice Course Handbook Series No. 342, 1987) (citing Lorillard v. Pons, 434 U.S. 575 (1978)).
139. See 29 U.S.C. §§ 216(b), 626(b) (1994).
140. See Barbara L. Schlei & Paul Grossman, Employment Discrimination Law 522-23 nn.215-19 (2d ed. 1983).
141. See Michael D. Hurd, Research on the Elderly: Economic Status, Retirement, and Consumption and Saving, 28 J. of Econ. Lit. 565, 590 (1990) (projecting values of 1968, 1970, 1971, and 1972 changes in Social Security benefit schedule to represent 72% increase).
142. Pub. Law No. 93-406, 88 Stat. 829 (codified as amended at 29 U.S.C. §§ 1001-1461 (1994)).
143. See Joseph E. Kalet, Age Discrimination in Employment Law 3 (1986).
144. See Amendments to the Age Discrimination in Employment Act of 1967: Hearings on H.R. 65 and H.R. 1115 Before the Subcomm. on Employment Opportunities of the Comm. on Educ. and Labor, 95th Cong. 7 (1977) [hereinafter 1977 House Hearings] (statement of Rep. Claude Pepper) (introducing his bill, H.R. 65, which would prohibit discrimination on basis of age in both public and private employment).
145. 1967 House Hearings, supra note 4, at 185.
146. See S. Rep. No. 95-493, at 31 (1977), reprinted in 1978 U.S.C.C.A.N. 504, 525 (additional views of Sen. Jacob K. Javits) (describing proposal to raise age cap to 70 as "the more conservative position").
147. See Age Discrimination in Employment Act Amendments of 1978, Pub. L. No. 95-256, § 3, 92 Stat. 189 (codified as amended at 29 U.S.C. § 631(a) (1994)).
148. The transfer was originally effected in 1978 pursuant to Reorganization Plan No. 1, which was authorized by the Reorganization Act of 1977, Pub. L. No. 95-17, 91 Stat. 29 (1977) (codified as amended at 5 U.S.C. §§ 901-12 (1994)). However, because of an unusual procedural mechanism that was subsequently determined to be unconstitutional, Congress had to reaffirm the transfer in a separate bill. See Act of Oct. 19, 1984, Pub. L. No. 98-532, 98 Stat. 2705 (codified as amended at 5 U.S.C. § 906 (1994)).
149. See generally Amendments to the Age Discrimination in Employment Act: Hearings on H.R. 2161, H.R. 3093, and H.R. 5310 Before the Subcomm. on Employment Opportunities of the House Comm. on Educ. and Labor, 98th Cong., 2d Sess. (1984).
150. See Age Discrimination in Employment Act of 1986, Pub. L. No. 99-592, § 2, 100 Stat. 3342 (1986) (codified as amended in 29 U.S.C. § 631 (1994)).
151. Pub. L. No. 101-433, 104 Stat. 978 (1990) (codified as amended at 29 U.S.C. §§ 623, 626, 630 (1994)).
152. For additional information, see Staff of Senate Comm. on Labor and Human Resources, 102d Cong., Legislative History of the Older Workers Benefit Protection Act (S. 1511 and Related Bills), pt. I (Comm. Print 1991) (detailing legislative background of OWBPA).
153. The elderly portion of the population has increased steadily. In 1900, only 4% of the population was 65 or older; in 1980, that number increased to 11%; by 2050, that figure is projected to reach 24%. See Hurd, supra note 100, at 565.
154. See id. at 585-88.
155. See O'Meara, supra note 18, at 29-33.
156. See Alan J. Auerbach & Laurence J. Kotlikoff, The Impact of the Demographic Transition on Capital Formation, in Demography and Retirement: The Twenty-First Century 163, 174 (Anna M. Rappaport & Sylvester J. Schieber eds., 1993).
157. See Posner, supra note 49, at 42. Judge Posner makes the critical additional observation that this increase is in actual income and does not include the imputed income from Medicare. It is possible to adjust this figure further by adding in the imputed income from owner occupied housing. Since the elderly are much more likely to live in their own homes and are likely to have less (if any) debt on these homes, imputing the income value of housing raises the expected living standard beyond that which would be projected from income stream alone. See Hurd, supra note 100, at 582 (noting imputation of income from housing equity increases income of elderly). As expressed by Professor Hurd, "[a] major finding of the research on economic status is that on average the elderly are as well off as the nonelderly and possibly much better off." Id. at 588.
158. See Posner, supra note 49, at 42. Judge Posner makes the critical additional observation that this increase is in actual income and does not include the imputed income from Medicare. It is possible to adjust this figure further by adding in the imputed income from owner occupied housing. Since the elderly are much more likely to live in their own homes and are likely to have less (if any) debt on these homes, imputing the income value of housing raises the expected living standard beyond that which would be projected from income stream alone. See Hurd, supra note 100, at 582 (noting imputation of income from housing equity increases income of elderly). As expressed by Professor Hurd, "[a] major finding of the research on economic status is that on average the elderly are as well off as the nonelderly and possibly much better off." Id. at 588.
159. Posner, supra note 49, at 36. Put less diplomatically, the question is whether the ADEA reforms are part of a larger problem of "[a] system in which the taxpayer supports the retiree rather than the retiree supporting himself out of his own deferral of consumption [that] invites each generation of old people to use their [sic] concentrated political might to plunder the young." Id. at 283.
160. See, e.g., Desda Moss, AARP Pushes Health-Care, Aging Issues, USA Today, May 10, 1988, at 1. See generally U.S. Census Bureau, Voting and Registration (last modified Aug. 16, 1996) 〈http://www.census.gov/population/socdemo/voting/votetab2.dat〉.
161. See, e.g., Moss, supra note 118, at 1; Leigh Page, Seniors May Hold the Wild Card on Medicare Reform, Am. Med. News, Sept. 4, 1995, at 1. See generally U.S. Census Bureau, Voting and Registration (last modified Aug. 16, 1996) 〈http://www.census.gov/population/ socdemo/voting/votetab2.dat〉.
162. See, e.g., Moss, supra note 118, at 1; Leigh Page, Seniors May Hold the Wild Card on Medicare Reform, Am. Med. News, Sept. 4, 1995, at 1. See generally U.S. Census Bureau, Voting and Registration (last modified Aug. 16, 1996) 〈http://www.census.gov/population/ socdemo/voting/votetab2.dat〉.
163. Moss, supra note 118, at 1.
164. Lawrence A. Frolik & Alison P. Barnes, An Aging Population: A Challenge to the Law, 42 Hastings L.J. 683, 707 (1991).
165. See id. at 715 (noting increase in such areas as Social Security, medical care, property tax relief, and subsidized housing); Peter G. Peterson, Will America Grow Up Before it Grows Old?, Atlantic Monthly, May 1996, at 55, 57-60 (citing statistical change in demographics resulting in imminent "age wave" expected to hit American Social Security system); Neal R. Peirce & Peter C. Choharis, The Elderly as a Political Force - 26 Million Strong and Well Organized, 1982 Nat'l J. 1559, 1559-1562 (quoting retired Rep. Dan Mica as noting elderly may receive more federal aid than necessary "because of political concerns").
166. See id. at 715 (noting increase in such areas as Social Security, medical care, property tax relief, and subsidized housing); Peter G. Peterson, Will America Grow Up Before it Grows Old?, Atlantic Monthly, May 1996, at 55, 57-60 (citing statistical change in demographics resulting in imminent "age wave" expected to hit American Social Security system); Neal R. Peirce & Peter C. Choharis, The Elderly as a Political Force - 26 Million Strong and Well Organized, 1982 Nat'l J. 1559, 1559-1562 (quoting retired Rep. Dan Mica as noting elderly may receive more federal aid than necessary "because of political concerns").
167. See O'Meara, supra note 18, at 48 ("The continued expansion of the ADEA is also ensured by the involvement of special interest groups whose power in Congress is substantial."); Peirce & Choharis, supra note 122, at 1560 ("Elderly advocates . . . take some of the credit for . . . the 1978 law that repealed the mandatory retirement age for most federal workers and extended the retirement age from 65 to 70 for most private workers.").
168. See O'Meara, supra note 18, at 48 ("The continued expansion of the ADEA is also ensured by the involvement of special interest groups whose power in Congress is substantial."); Peirce & Choharis, supra note 122, at 1560 ("Elderly advocates . . . take some of the credit for . . . the 1978 law that repealed the mandatory retirement age for most federal workers and extended the retirement age from 65 to 70 for most private workers.").
169. See The Removal of Age Ceiling Cap Under the Age Discrimination in Employment Act: Joint Hearing Before the Subcomm. on Employment Opportunities of the Comm. on Educ. and Labor and the Subcomm. on Health and Long-term Care of the Select Comm. on Aging, 99th Cong. 46-47 (1986) (statement of Dr. Erling Johnson on behalf of AARP) (noting "sharply limited" opportunities for older workers); H.R. Rep. No. 99-756, at 7-8 (1986), reprinted in 1986 U.S.C.C.A.N. 5628, 5633-34 (quoting earlier testimony of Dr. Johnson of AARP, characterizing mandatory retirement as denial of older Americans' "basic rights to remain as productive members of society").
170. The classic example comes with Griggs v. Duke Power, 401 U.S. 424 (1971). A scant seven years after Congress passed Title VII, the Court had to confront the fact that "built-in headwinds," themselves the product of years of de facto and de jure segregation, had left the black citizens of North Carolina as vulnerable to disparate impact exclusion from desired employment as they had been to categorical prohibitions on their job seeking under formal segregation. See id. at 432.
171. See 1967 House Hearings, supra note 4, at 7 (statement of W. Willard Wirtz, Secretary of Labor) (declaring that reason for no prior action to assure older employees opportunity was because "the 'has-beens' haven't a lobby").
172. See id. at 8 (statement of W. Willard Wirtz, Secretary of Labor) (arguing that H.R. 4221 demonstrated "conservative" but "determined" approach to age discrimination in employment).
173. See Age Discrimination in Employment: Hearings on S. 830 & S. 788 Before the Subcomm. on Labor of the Comm. on Labor and Pub. Welfare, 90th Cong. 46 (1967); see also O'Meara, supra note 18, at 14 ("In short, Congress was totally unaware of the impact the ADEA would ultimately have."). For the contested positions on this issue, see James M. Buchanan & Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy 283-95, 305 (1962) (introducing public choice argument that legislative arena is source of special interest capture); Frank H. Easterbrook, Statutes' Domains, 50 U. Chi. L. Rev. 533, 543 (1983) (arguing for strict literal construction of statutes in light of capacity for rent seeking behavior); Cass R. Sunstein, Naked Preferences and the Constitution, 84 Colum. L. Rev. 1689, 1731 (1984) (arguing for stricter judicial review of nonpublic-interest-protecting statutes).
174. See Age Discrimination in Employment: Hearings on S. 830 & S. 788 Before the Subcomm. on Labor of the Comm. on Labor and Pub. Welfare, 90th Cong. 46 (1967); see also O'Meara, supra note 18, at 14 ("In short, Congress was totally unaware of the impact the ADEA would ultimately have."). For the contested positions on this issue, see James M. Buchanan & Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy 283-95, 305 (1962) (introducing public choice argument that legislative arena is source of special interest capture); Frank H. Easterbrook, Statutes' Domains, 50 U. Chi. L. Rev. 533, 543 (1983) (arguing for strict literal construction of statutes in light of capacity for rent seeking behavior); Cass R. Sunstein, Naked Preferences and the Constitution, 84 Colum. L. Rev. 1689, 1731 (1984) (arguing for stricter judicial review of nonpublic-interest-protecting statutes).
175. See Age Discrimination in Employment: Hearings on S. 830 & S. 788 Before the Subcomm. on Labor of the Comm. on Labor and Pub. Welfare, 90th Cong. 46 (1967); see also O'Meara, supra note 18, at 14 ("In short, Congress was totally unaware of the impact the ADEA would ultimately have."). 129 For the contested positions on this issue, see James M. Buchanan & Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy 283-95, 305 (1962) (introducing public choice argument that legislative arena is source of special interest capture); Frank H. Easterbrook, Statutes' Domains, 50 U. Chi. L. Rev. 533, 543 (1983) (arguing for strict literal construction of statutes in light of capacity for rent seeking behavior); Cass R. Sunstein, Naked Preferences and the Constitution, 84 Colum. L. Rev. 1689, 1731 (1984) (arguing for stricter judicial review of nonpublic-interest-protecting statutes).
176. See Age Discrimination in Employment: Hearings on S. 830 & S. 788 Before the Subcomm. on Labor of the Comm. on Labor and Pub. Welfare, 90th Cong. 46 (1967); see also O'Meara, supra note 18, at 14 ("In short, Congress was totally unaware of the impact the ADEA would ultimately have."). For the contested positions on this issue, see James M. Buchanan & Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy 283-95, 305 (1962) (introducing public choice argument that legislative arena is source of special interest capture); Frank H. Easterbrook, Statutes' Domains, 50 U. Chi. L. Rev. 533, 543 (1983) (arguing for strict literal construction of statutes in light of capacity for rent seeking behavior); Cass R. Sunstein, Naked Preferences and the Constitution, 84 Colum. L. Rev. 1689, 1731 (1984) (arguing for stricter judicial review of nonpublic-interest-protecting statutes).
177. See Age Discrimination in Employment: Hearings on S. 830 & S. 788 Before the Subcomm. on Labor of the Comm. on Labor and Pub. Welfare, 90th Cong. 46 (1967); see also O'Meara, supra note 18, at 14 ("In short, Congress was totally unaware of the impact the ADEA would ultimately have."). For the contested positions on this issue, see James M. Buchanan & Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy 283-95, 305 (1962) (introducing public choice argument that legislative arena is source of special interest capture); Frank H. Easterbrook, Statutes' Domains, 50 U. Chi. L. Rev. 533, 543 (1983) (arguing for strict literal construction of statutes in light of capacity for rent seeking behavior); Cass R. Sunstein, Naked Preferences and the Constitution, 84 Colum. L. Rev. 1689, 1731 (1984) (arguing for stricter judicial review of nonpublic-interest-protecting statutes).
178. See Williamson v. Lee Optical, 348 U.S. 483, 486-87 (1955) (discussing Oklahoma law that prohibited opticians from fitting "old glasses into new frames or supply[ing] a lens" without prescription from ophthalmologist or optometrist and upholding law even though it may "exact a needless, wasteful requirement in many cases").
179. For a classic discussion of the concerted efforts of dairy farmers to block and/or tax the sale of margarine, see Geoffrey P. Miller, Public Choice at the Dawn of the Special Interest State: The Story of Butter and Margarine, 77 Cal. L. Rev. 83 (1989).
180. One of our favorite examples occurs presently in Texas. Texas is the only state in the nation that does not permit home equity loans secured by a lien on the homestead. As a result, consumers with large equity in their homes are unable to secure credit that not only is available at lower rates, but also is the only form of consumer credit that is tax deductible. Consequently, homeowners in need of funds are forced to sell their homes and refinance a new home in order to tap their equity. The most vocal opponents of allowing homeowner equity loans are those well known champions of consumer rights: the Texas real estate lobby and the Texas homebuilders lobby. See Earl Golz, No Equity to Lend; Texas Law Still Prohibits Financing that Banks, Some Homeowners Want, Austin Am.-Statesman, Aug. 18, 1996, at Hl. Detecting a tad of self-interest in such sudden invocations of the public welfare by these business interests is not difficult.
181. See Nomination of Judge Clarence Thomas to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 102d Cong. 315 (1991) (statement of then-Judge Clarence Thomas) (describing focus on age discrimination as "requir[ing] a redirection of an enormous amount of resources in the agency").
182. This understanding is somewhat different than Professor Miller's conclusion about the effect of a federal system on the efforts to deter margarine consumption: "The existence of a federal system benefitted the dairy lobby because the industry could initiate campaigns for state legislation, where free-rider and organization costs were low relative to national politics." Miller, supra note 131, at 86.
183. According to the great Chinese military strategist, "those skilled at making the enemy move do so by creating a situation to which he must conform; they entice him with something he is certain to take, and with the lures of ostensible profit they await him in strength." Sun Tzu, The Art of War 93 (Samuel B. Griffith trans., Clarendon Press 1963) (6th century B.C.). This tactic is part of the overall strategy by which "those skilled in war bring the enemy to the field of battle and are not brought there by him." Id. at 96.
184. Oliver W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 477 (1897) . For a review of the bases for legal recognition of preexisting entitlements, see Samuel Issacharoff, When Substance Mandates Procedure: Martin v. Wilks and the Rights of Vested Incumbents in Civil Rights Consent Decrees, 77 Cornell L. Rev. 189, 215-18 (1992). For explicit examples of such defensive posturing by the AARP allegedly to protect preexisting entitlements in the debates over employee benefits, see Has High Court Imperiled Older Workers' Benefits?, Occupational Hazards, Oct. 1989, at 115 (quoting AARP attorney Chris Mackaronis that "[The Supreme Court's decision in Public Employees Retirement System v. Betts] is incorrect" and "must be overturned through legislative action, thus explicitly restoring the rights older workers have had all along under the law").
185. Oliver W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 477 (1897) . For a review of the bases for legal recognition of preexisting entitlements, see Samuel Issacharoff, When Substance Mandates Procedure: Martin v. Wilks and the Rights of Vested Incumbents in Civil Rights Consent Decrees, 77 Cornell L. Rev. 189, 215-18 (1992). For explicit examples of such defensive posturing by the AARP allegedly to protect preexisting entitlements in the debates over employee benefits, see Has High Court Imperiled Older Workers' Benefits?, Occupational Hazards, Oct. 1989, at 115 (quoting AARP attorney Chris Mackaronis that "[The Supreme Court's decision in Public Employees Retirement System v. Betts] is incorrect" and "must be overturned through legislative action, thus explicitly restoring the rights older workers have had all along under the law").
186. Oliver W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 477 (1897) . For a review of the bases for legal recognition of preexisting entitlements, see Samuel Issacharoff, When Substance Mandates Procedure: Martin v. Wilks and the Rights of Vested Incumbents in Civil Rights Consent Decrees, 77 Cornell L. Rev. 189, 215-18 (1992). For explicit examples of such defensive posturing by the AARP allegedly to protect preexisting entitlements in the debates over employee benefits, see Has High Court Imperiled Older Workers' Benefits?, Occupational Hazards, Oct. 1989, at 115 (quoting AARP attorney Chris Mackaronis that "[The Supreme Court's decision in Public Employees Retirement System v. Betts] is incorrect" and "must be overturned through legislative action, thus explicitly restoring the rights older workers have had all along under the law").
187. "Notch babies" are so called because they were born between 1917 and 1921 and thus fell within a regulatory gulf erroneously created when Congress indexed Social Security benefits to keep up with inflation in 1972. In the 1972 law, Congress inadvertently granted Social Security recipients born between 1910 and 1916 double compensation for inflation. See Timothy Noah, Notch Babies: The Hidden Issue of the '86 Campaign, New Republic, Dec. 1, 1986, at 18, 20. Congress then tried to remedy this unintended windfall by tapering off excess payments for those born between 1917 and 1921. The claim of the notch babies was that although they received extra Social Security benefits which Congress never intended for them when revising the system in 1972, they did not receive as much extra as those born before them.
188. See Julie Kosterlitz, Little Can Match a Notch Baby's Cry, 1988 Nat'l J. 1081, 1081.
189. The notch babies argued vociferously in Congress for added benefits to match fully the windfall received by those born in 1910-1916. Congress eventually capitulated on the issue, holding hearings on the notch issue and often addressing bills to mollify the notch babies' claims that Congress unjustly failed to "find enough money to pay [them] what is rightfully [theirs]." Julie Kosterlitz, Pension Penury, 1992 Nat'l J. 1809, 1809; see also Kosterlitz, supra note 138, at 1081 (discussing hearings on issue and influence of "vocal" notch babies on legislators); Susan Kellam, Social Security Riders Thrown From Senate Treasury Bill, 50 Cong. Q. Wkly. Rep., Sept. 12, 1992, at 2712, 2712 (noting that Senate was virtually evenly divided on whether to fund extra benefits for notch babies).
190. The notch babies argued vociferously in Congress for added benefits to match fully the windfall received by those born in 1910-1916. Congress eventually capitulated on the issue, holding hearings on the notch issue and often addressing bills to mollify the notch babies' claims that Congress unjustly failed to "find enough money to pay [them] what is rightfully [theirs]." Julie Kosterlitz, Pension Penury, 1992 Nat'l J. 1809, 1809; see also Kosterlitz, supra note 138, at 1081 (discussing hearings on issue and influence of "vocal" notch babies on legislators); Susan Kellam, Social Security Riders Thrown From Senate Treasury Bill, 50 Cong. Q. Wkly. Rep., Sept. 12, 1992, at 2712, 2712 (noting that Senate was virtually evenly divided on whether to fund extra benefits for notch babies).
191. The notch babies argued vociferously in Congress for added benefits to match fully the windfall received by those born in 1910-1916. Congress eventually capitulated on the issue, holding hearings on the notch issue and often addressing bills to mollify the notch babies' claims that Congress unjustly failed to "find enough money to pay [them] what is rightfully [theirs]." Julie Kosterlitz, Pension Penury, 1992 Nat'l J. 1809, 1809; see also Kosterlitz, supra note 138, at 1081 (discussing hearings on issue and influence of "vocal" notch babies on legislators); Susan Kellam, Social Security Riders Thrown From Senate Treasury Bill, 50 Cong. Q. Wkly. Rep., Sept. 12, 1992, at 2712, 2712 (noting that Senate was virtually evenly divided on whether to fund extra benefits for notch babies).
192. Miller, supra note 131, at 87.
193. See Mancur Olsen, Jr., The Logic of Collective Action: Public Goods and the Theory of Groups 53-65 (1965). See generally Daniel A. Farber and Philip P. Frickey, Law and Public Choice: A Critical Introduction (1991); Russell Hardin, Collective Action (1982). For a discussion of the specific problems of organizing coalitions to pursue legislative reforms, see Robert D. Tollison, Public Choice and Legislation, 74 Va. L. Rev. 339, 341-42 (1988).
194. See Mancur Olsen, Jr., The Logic of Collective Action: Public Goods and the Theory of Groups 53-65 (1965). See generally Daniel A. Farber and Philip P. Frickey, Law and Public Choice: A Critical Introduction (1991); Russell Hardin, Collective Action (1982). For a discussion of the specific problems of organizing coalitions to pursue legislative reforms, see Robert D. Tollison, Public Choice and Legislation, 74 Va. L. Rev. 339, 341-42 (1988).
195. See Mancur Olsen, Jr., The Logic of Collective Action: Public Goods and the Theory of Groups 53-65 (1965). See generally Daniel A. Farber and Philip P. Frickey, Law and Public Choice: A Critical Introduction (1991); Russell Hardin, Collective Action (1982). For a discussion of the specific problems of organizing coalitions to pursue legislative reforms, see Robert D. Tollison, Public Choice and Legislation, 74 Va. L. Rev. 339, 341-42 (1988).
196. See Mancur Olsen, Jr., The Logic of Collective Action: Public Goods and the Theory of Groups 53-65 (1965). See generally Daniel A. Farber and Philip P. Frickey, Law and Public Choice: A Critical Introduction (1991); Russell Hardin, Collective Action (1982). For a discussion of the specific problems of organizing coalitions to pursue legislative reforms, see Robert D. Tollison, Public Choice and Legislation, 74 Va. L. Rev. 339, 341-42 (1988).
197. See Gary S. Becker, A Theory of Competition Among Pressure Groups for Political Influence, 98 Q.J. Econ. 371, 380 (1983) (commenting on constant problem of free riding in political organization).
198. See Jonathan Peterson, 19 Million Members: Association of Retirees a Major Force, L.A. Times, Sept. 19, 1985, § 1, at 5 (counting only two million AARP members in 1971, but 12 million in 1981).
199. See David DeVoss, Empire of the Old: Old Age, Says the American Association of Retired Persons, is a Privilege, Not a Punishment, L.A. Times, Feb. 12, 1989, Magazine, at 8 (citing cash flow problems and declining membership as reasons for AARP's ineffectiveness).
200. See Peterson, supra note 143, at 5 (noting that in 1960s, the "AARP left it to other organizations, such as the National Council of Senior Citizens, to be the chief advocates"); Getting Rid of 65-and-Out, Bus. Week (Industrial ed.), Mar. 1, 1976, at 61 (citing "the militant Gray Panthers and the sedate American Association of Retired Persons" as being among opponents of mandatory retirement).
201. See Peterson, supra note 143, at 5 (noting that in 1960s, the "AARP left it to other organizations, such as the National Council of Senior Citizens, to be the chief advocates"); Getting Rid of 65-and-Out, Bus. Week (Industrial ed.), Mar. 1, 1976, at 61 (citing "the militant Gray Panthers and the sedate American Association of Retired Persons" as being among opponents of mandatory retirement).
202. See DeVoss, supra note 144, at 8.
203. This campaign offered AARP members special group rates on products and services, including discounted insurance, travel, hotels, magazines, and prescriptions. See DeVoss, supra note 144, at 8; Eric Schurenberg & Lani Luciano, The Empire Called AARP, Money, Oct. 1988, at 128, 130; see also Business and Financial Practices of the AARP: Hearings before the Subcomm. on Social Security and Family Policy of the Comm. on Finance, 104th Cong. 90 (1995) (statement of Paul S. Hewitt) (noting relation between media flood and AARP power). By 1982, the AARP had "started aggressively promoting an expanded range of competitively priced financial services." DeVoss, supra note 144, at 8.
204. This campaign offered AARP members special group rates on products and services, including discounted insurance, travel, hotels, magazines, and prescriptions. See DeVoss, supra note 144, at 8; Eric Schurenberg & Lani Luciano, The Empire Called AARP, Money, Oct. 1988, at 128, 130; see also Business and Financial Practices of the AARP: Hearings before the Subcomm. on Social Security and Family Policy of the Comm. on Finance, 104th Cong. 90 (1995) (statement of Paul S. Hewitt) (noting relation between media flood and AARP power). By 1982, the AARP had "started aggressively promoting an expanded range of competitively priced financial services." DeVoss, supra note 144, at 8.
205. This campaign offered AARP members special group rates on products and services, including discounted insurance, travel, hotels, magazines, and prescriptions. See DeVoss, supra note 144, at 8; Eric Schurenberg & Lani Luciano, The Empire Called AARP, Money, Oct. 1988, at 128, 130; see also Business and Financial Practices of the AARP: Hearings before the Subcomm. on Social Security and Family Policy of the Comm. on Finance, 104th Cong. 90 (1995) (statement of Paul S. Hewitt) (noting relation between media flood and AARP power). By 1982, the AARP had "started aggressively promoting an expanded range of competitively priced financial services." DeVoss, supra note 144, at 8.
206. This campaign offered AARP members special group rates on products and services, including discounted insurance, travel, hotels, magazines, and prescriptions. See DeVoss, supra note 144, at 8; Eric Schurenberg & Lani Luciano, The Empire Called AARP, Money, Oct. 1988, at 128, 130; see also Business and Financial Practices of the AARP: Hearings before the Subcomm. on Social Security and Family Policy of the Comm. on Finance, 104th Cong. 90 (1995) (statement of Paul S. Hewitt) (noting relation between media flood and AARP power). By 1982, the AARP had "started aggressively promoting an expanded range of competitively priced financial services." DeVoss, supra note 144, at 8.
207. See Peterson, supra note 143, at 5.
208. Bryan D. Glass, Comment, The British Resistance to Age Discrimination Legislation: Is it Time to Follow the U.S. Example?, 16 Comp. Lab. L.J. 491, 532 (1995).
209. Id.
210. See AARP, All About the AARP: Its Programs, Its Services 12 (1987); see also Schurenberg & Luciano, supra note 147, at 128 (noting that AARP has 30 million members, which makes it second largest organization in the United States - second only to Roman Catholic Church).
211. See AARP, All About the AARP: Its Programs, Its Services 12 (1987); see also Schurenberg & Luciano, supra note 147, at 128 (noting that AARP has 30 million members, which makes it second largest organization in the United States - second only to Roman Catholic Church).
212. See Hearing on AARP Gives Preview of Lobby Reform Battle, Congress Daily, June 13, 1995, available in 1995 WL 10435462.
213. See Schurenberg & Luciano, supra note 147, at 128-29.
214. See Peterson, supra note 143, at 5 (noting increasingly bold goals, including containing health care costs and improving work conditions of older employees).
215. See id. at 49 (quoting John Rother, Director of AARP's division of legislation, research, and public policy, on AARP's increased assertiveness in promoting interests of older workers in 1985: "We've been very conservative in the past about not wanting to push too hard . . . but we just can't walk away.").
216. AARP's Internet Webpage (visited May 25, 1997) 〈http://www.aarp.org/ advocacy.html〉.
217. Margot Hornblower, Gray Power! AARP Emerges as the Nation's Most Powerful Special Interest Lobby, Time, Jan. 4, 1988, at 35, 35.
218. See id. (citing Congress's abandonment of proposal to scale down Social Security cost of living increases in response to pressure from senior citizens' lobby).
219. See Glass, supra note 149, at 532 (crediting AARP with helping elderly draw at least 72% of all federal expenditures); Peirce & Choharis, supra note 122, at 1560 (noting lobbying victories of elderly in preventing cuts in basic Social Security benefits and securing 1978 law that repealed mandatory retirement age for most federal workers and extended retirement age from 65 to 70).
220. See Glass, supra note 149, at 532 (crediting AARP with helping elderly draw at least 72% of all federal expenditures); Peirce & Choharis, supra note 122, at 1560 (noting lobbying victories of elderly in preventing cuts in basic Social Security benefits and securing 1978 law that repealed mandatory retirement age for most federal workers and extended retirement age from 65 to 70).
221. See Peterson, supra note 143, at 5 (remarking on immense size of AARP and resultant political clout).
222. Michael D'Antonio, The New Generation Gap, L.A. Times, Mar. 14, 1993, Magazine, at 16.
223. See 29 U.S.C. § 631 (1994).
224. By 1983, the AARP boasted 14 million members and was considered "the great grandaddy of senior power in America." See Tom Morganthau, Legions of the Old, Newsweek, Jan. 24, 1983, at 23; see also Debate: Should Mandatory Retirement Be Outlawed?, N.Y. Times, Apr. 14, 1985, § 4, at 24 (showing increasing number of Americans aged 55 and older).
225. By 1983, the AARP boasted 14 million members and was considered "the great grandaddy of senior power in America." See Tom Morganthau, Legions of the Old, Newsweek, Jan. 24, 1983, at 23; see also Debate: Should Mandatory Retirement Be Outlawed?, N.Y. Times, Apr. 14, 1985, § 4, at 24 (showing increasing number of Americans aged 55 and older).
226. See Peterson, supra note 143, at 5 ("AARP carried its opposition to mandatory retirement to the Supreme Court, in separate briefs filed on behalf of public employees and Western Airlines flight engineers."); Debate: Should Mandatory Retirement be Outlawed?, supra note 163, at 24 (quoting AARP Executive Director Cyril F. Brickfield on mandatory retirement: "[A]ge discrimination cases are the largest category of cases now being handled by the Equal Employment Opportunity Commission.").
227. See Peterson, supra note 143, at 5 ("AARP carried its opposition to mandatory retirement to the Supreme Court, in separate briefs filed on behalf of public employees and Western Airlines flight engineers."); Debate: Should Mandatory Retirement be Outlawed?, supra note 163, at 24 (quoting AARP Executive Director Cyril F. Brickfield on mandatory retirement: "[A]ge discrimination cases are the largest category of cases now being handled by the Equal Employment Opportunity Commission.").
228. See O'Meara, supra note 18, at 18-19 (noting that amendments were passed in rush of legislation and that "there are no meaningful committee reports on the controversial provisions").
229. DeVoss, supra note 144, at 8; see also M.B. Christie, AARP Picks New Executive Director, Wash. Post, Aug. 17, 1987, at 7 (quoting AARP executive director Cyril F. Brickfield as citing elimination of mandatory retirement as one of AARP's "greatest past achievements"); John Furey, The Elderly: Soft Voice, Big Stick, San Diego Union Trib., May 28, 1986, at A1 (discussing lobbying power and tactics of AARP).
230. DeVoss, supra note 144, at 8; see also M.B. Christie, AARP Picks New Executive Director, Wash. Post, Aug. 17, 1987, at 7 (quoting AARP executive director Cyril F. Brickfield as citing elimination of mandatory retirement as one of AARP's "greatest past achievements"); John Furey, The Elderly: Soft Voice, Big Stick, San Diego Union Trib., May 28, 1986, at A1 (discussing lobbying power and tactics of AARP).
231. DeVoss, supra note 144, at 8; see also M.B. Christie, AARP Picks New Executive Director, Wash. Post, Aug. 17, 1987, at 7 (quoting AARP executive director Cyril F. Brickfield as citing elimination of mandatory retirement as one of AARP's "greatest past achievements"); John Furey, The Elderly: Soft Voice, Big Stick, San Diego Union Trib., May 28, 1986, at A1 (discussing lobbying power and tactics of AARP).
232. Older Workers Benefit Protection Act of 1990, Pub. L. No. 101-433, 104 Stat. 978 (codified as amended at 29 U.S.C. §§ 623, 626, 630 (1994)).
233. See infra text accompanying notes 179-82.
234. 492 U.S. 158 (1989).
235. See id. at 177, 181.
236. See Betts, 492 U.S. at 163-64.
237. See OWBPA Hearings, supra note 22, at 3 (statement of Sen. Pryor) ("What we are trying to do is to restore by restatement the rules, regulations and law regarding the [ADEA]'s application to employee benefits.").
238. See Kerry A. Brennan, Note, Early Retirement Incentives: "Golden Handshake" for Some, Age Discrimination for Others, 54 Brook. L. Rev. 927, 928 n.5 (1988) (reporting results from study concluding that 51% of surveyed employers offered cash payment as part of their ERIPs); Neill A. Borowski, Legislation May Board Shut "Windows" for Early Retirement, Chi. Trib., July 22, 1990, § 7, at 12B (describing ERIP amounting to two times worker's annual salary); Mike Causey, After the Buyouts, Wash. Post, Dec. 5, 1994, at D2 (reporting that one large scale ERIP offered buyouts of up to $25,000); Bill Sing, Look Before Leaping at Early Retirement Offers, L.A. Times, Jan. 13, 1991, at D4 (finding that ERIPs often eliminate pension reductions for early retirement, grant bonus years toward pensions, or give lump sum payment equal to six months' or one year's worth of pay or two weeks' pay for each year of service).
239. See Kerry A. Brennan, Note, Early Retirement Incentives: "Golden Handshake" for Some, Age Discrimination for Others, 54 Brook. L. Rev. 927, 928 n.5 (1988) (reporting results from study concluding that 51% of surveyed employers offered cash payment as part of their ERIPs); Neill A. Borowski, Legislation May Board Shut "Windows" for Early Retirement, Chi. Trib., July 22, 1990, § 7, at 12B (describing ERIP amounting to two times worker's annual salary); Mike Causey, After the Buyouts, Wash. Post, Dec. 5, 1994, at D2 (reporting that one large scale ERIP offered buyouts of up to $25,000); Bill Sing, Look Before Leaping at Early Retirement Offers, L.A. Times, Jan. 13, 1991, at D4 (finding that ERIPs often eliminate pension reductions for early retirement, grant bonus years toward pensions, or give lump sum payment equal to six months' or one year's worth of pay or two weeks' pay for each year of service).
240. See Kerry A. Brennan, Note, Early Retirement Incentives: "Golden Handshake" for Some, Age Discrimination for Others, 54 Brook. L. Rev. 927, 928 n.5 (1988) (reporting results from study concluding that 51% of surveyed employers offered cash payment as part of their ERIPs); Neill A. Borowski, Legislation May Board Shut "Windows" for Early Retirement, Chi. Trib., July 22, 1990, § 7, at 12B (describing ERIP amounting to two times worker's annual salary); Mike Causey, After the Buyouts, Wash. Post, Dec. 5, 1994, at D2 (reporting that one large scale ERIP offered buyouts of up to $25,000); Bill Sing, Look Before Leaping at Early Retirement Offers, L.A. Times, Jan. 13,
241. See Kerry A. Brennan, Note, Early Retirement Incentives: "Golden Handshake" for Some, Age Discrimination for Others, 54 Brook. L. Rev. 927, 928 n.5 (1988) (reporting results from study concluding that 51% of surveyed employers offered cash payment as part of their ERIPs); Neill A. Borowski, Legislation May Board Shut "Windows" for Early Retirement, Chi. Trib., July 22, 1990, § 7, at 12B (describing ERIP amounting to two times worker's annual salary); Mike Causey, After the Buyouts, Wash. Post, Dec. 5, 1994, at D2 (reporting that one large scale ERIP offered buyouts of up to $25,000); Bill Sing, Look Before Leaping at Early Retirement Offers, L.A. Times, Jan. 13, 1991, at D4 (finding that ERIPs often eliminate pension reductions for early retirement, grant bonus years toward pensions, or give lump sum payment equal to six months' or one year's worth of pay or two weeks' pay for each year of service).
242. See Erica Worth, Note, In Defense of Targeted ERIPs: Understanding the Interaction of Life-Cycle Employment and Early Retirement Incentive Plans, 74 Tex. L. Rev. 411, 420 (1995) (describing how end of mandatory retirement led to birth of ERIPs); see also OWBPA Hearings, supra note 22, at 321 (statement of Charles A. Corry, Chairman, USX Corp.) ("[T]he continuous stream of legislation and regulation makes it more and more difficult for employers and employees to plan retirement incomes, age of retirement, employee replacements, pension plan funding, pension cost, tax impact. . . .").
243. See Erica Worth, Note, In Defense of Targeted ERIPs: Understanding the Interaction of Life-Cycle Employment and Early Retirement Incentive Plans, 74 Tex. L. Rev. 411, 420 (1995) (describing how end of mandatory retirement led to birth of ERIPs); see also OWBPA Hearings, supra note 22, at 321 (statement of Charles A. Corry, Chairman, USX Corp.) ("[T]he continuous stream of legislation and regulation makes it more and more difficult for employers and employees to plan retirement incomes, age of retirement, employee replacements, pension plan funding, pension cost, tax impact. . . .").
244. See Worth, supra note 174, at 420 ("Faced with an indefinite obligation to pay excessive wages to older workers, employers searched for a way to escape unbounded liability without violating the ADEA . . . ."); see also Robert Lewis, "Downsizing" Taking a Higher Toll, AARP Bull., Nov. 1994, at 14, 14 (reporting view of older worker who noted that "the traditional employer-employee compact that rewarded performance and loyalty with job security no longer exists").
245. See Worth, supra note 174, at 420 ("Faced with an indefinite obligation to pay excessive wages to older workers, employers searched for a way to escape unbounded liability without violating the ADEA . . . ."); see also Robert Lewis, "Downsizing" Taking a Higher Toll, AARP Bull., Nov. 1994, at 14, 14 (reporting view of older worker who noted that "the traditional employer-employee compact that rewarded performance and loyalty with job security no longer exists").
246. See Edward P. Lazear, Pensions as Severance Pay, in Financial Aspects of the United States Pension System 57, 57 (Zvi Bodie & John B. Shoven eds., 1983) (noting that pensions are being used to induce older workers to retire); Charles A. Shanor, Age Discrimination Issues: Reductions in Force, Voluntary Separation Programs, and Severance Benefits Litigation, C669 ALI-ABA Course of Study Materials: Advanced Employment Law and Litigation 369, 385 (1991) (noting that plans offer lump sums and other incentives which augment existing retirement benefits in order to induce early retirement); Charles B. Craver, The Application of the Age Discrimination in Employment Act to Persons Over Seventy, 58 Geo. Wash. L. Rev. 52, 110 (1989) (observing that businesses that "may no longer rely upon mandatory retirement policies to terminate older employees . . . will be forced to resort to voluntary retirement incentives"); Frolik & Barnes, supra note 121, at 687 ("Employers who can no longer engage in mandatory retirement arrange pension benefits to encourage voluntary retirement in order to spare themselves the attempt at justifying forced retirement of a particular individual."); Gurus in Government, Economist, May 20, 1995, at 21, 22 ("Employment laws mean that sacking public workers is expensive . . . because senior people have to be 'bought out'. . . ."); Jeanne Saddler, Playing Favorites? Older Workers Sue Over Early Retirement Plans, Wall St. J., Aug. 14, 1987, § 2, at 17 (observing that early retirement incentive plans have "become one of corporate America's most widely used tools for pruning its work force").
247. See Edward P. Lazear, Pensions as Severance Pay, in Financial Aspects of the United States Pension System 57, 57 (Zvi Bodie & John B. Shoven eds., 1983) (noting that pensions are being used to induce older workers to retire); Charles A. Shanor, Age Discrimination Issues: Reductions in Force, Voluntary Separation Programs, and Severance Benefits Litigation, C669 ALI-ABA Course of Study Materials: Advanced Employment Law and Litigation 369, 385 (1991) (noting that plans offer lump sums and other incentives which augment existing retirement benefits in order to induce early retirement); Charles B. Craver, The Application of the Age Discrimination in Employment Act to Persons Over Seventy, 58 Geo. Wash. L. Rev. 52, 110 (1989) (observing that businesses that "may no longer rely upon mandatory retirement policies to terminate older employees . . . will be forced to resort to voluntary retirement incentives"); Frolik & Barnes, supra note 121, at 687 ("Employers who can no longer engage in mandatory retirement arrange pension benefits to encourage voluntary retirement in order to spare themselves the attempt at justifying forced retirement of a particular individual."); Gurus in Government, Economist, May 20, 1995, at 21, 22 ("Employment laws mean that sacking public workers is expensive . . . because senior people have to be 'bought out'. . . ."); Jeanne Saddler, Playing Favorites? Older Workers Sue Over Early Retirement Plans, Wall St. J., Aug. 14, 1987, § 2, at 17 (observing that early retirement incentive plans have "become one of corporate America's most widely used tools for pruning its work force").
248. See Edward P. Lazear, Pensions as Severance Pay, in Financial Aspects of the United States Pension System 57, 57 (Zvi Bodie & John B. Shoven eds., 1983) (noting that pensions are being used to induce older workers to retire); Charles A. Shanor, Age Discrimination Issues: Reductions in Force, Voluntary Separation Programs, and Severance Benefits Litigation, C669 ALI-ABA Course of Study Materials: Advanced Employment Law and Litigation 369, 385 (1991) (noting that plans offer lump sums and other incentives which augment existing retirement benefits in order to induce early retirement); Charles B. Craver, The Application of the Age Discrimination in Employment Act to Persons Over Seventy, 58 Geo. Wash. L. Rev. 52, 110 (1989) (observing that businesses that "may no longer rely upon mandatory retirement policies to terminate older employees . . . will be forced to resort to voluntary retirement incentives"); Frolik & Barnes, supra note 121, at 687 ("Employers who can no longer engage in mandatory retirement arrange pension benefits to encourage voluntary retirement in order to spare themselves the attempt at justifying forced retirement of a particular individual."); Gurus in Government, Economist, May 20, 1995, at 21, 22 ("Employment laws mean that sacking public workers is expensive . . . because senior people have to be 'bought out'. . . ."); Jeanne Saddler, Playing Favorites? Older Workers Sue Over Early Retirement Plans, Wall St. J., Aug. 14, 1987, § 2, at 17 (observing that early retirement incentive plans have "become one of corporate America's most widely used tools for pruning its work force").
249. See Edward P. Lazear, Pensions as Severance Pay, in Financial Aspects of the United States Pension System 57, 57 (Zvi Bodie & John B. Shoven eds., 1983) (noting that pensions are being used to induce older workers to retire); Charles A. Shanor, Age Discrimination Issues: Reductions in Force, Voluntary Separation Programs, and Severance Benefits Litigation, C669 ALI-ABA Course of Study Materials: Advanced Employment Law and Litigation 369, 385 (1991) (noting that plans offer lump sums and other incentives which augment existing retirement benefits in order to induce early retirement); Charles B. Craver, The Application of the Age Discrimination in Employment Act to Persons Over Seventy, 58 Geo. Wash. L. Rev. 52, 110 (1989) (observing that businesses that "may no longer rely upon mandatory retirement policies to terminate older employees . . . will be forced to resort to voluntary retirement incentives"); Frolik & Barnes, supra note 121, at 687 ("Employers who can no longer engage in mandatory retirement arrange pension benefits to encourage voluntary retirement in order to spare themselves the attempt at justifying forced retirement of a particular individual."); Gurus in Government, Economist, May 20, 1995, at 21, 22 ("Employment laws mean that sacking public workers is expensive . . . because senior people have to be 'bought out'. . . ."); Jeanne Saddler, Playing Favorites? Older Workers Sue Over Early Retirement Plans, Wall St. J., Aug. 14, 1987, § 2, at 17 (observing that early retirement incentive plans have "become one of corporate America's most widely used tools for pruning its work force").
250. See Edward P. Lazear, Pensions as Severance Pay, in Financial Aspects of the United States Pension System 57, 57 (Zvi Bodie & John B. Shoven eds., 1983) (noting that pensions are being used to induce older workers to retire); Charles A. Shanor, Age Discrimination Issues: Reductions in Force, Voluntary Separation Programs, and Severance Benefits Litigation, C669 ALI-ABA Course of Study Materials: Advanced Employment Law and Litigation 369, 385 (1991) (noting that plans offer lump sums and other incentives which augment existing retirement benefits in order to induce early retirement); Charles B. Craver, The Application of the Age Discrimination in Employment Act to Persons Over Seventy, 58 Geo. Wash. L. Rev. 52, 110 (1989) (observing that businesses that "may no longer rely upon mandatory retirement policies to terminate older employees . . . will be forced to resort to voluntary retirement incentives"); Frolik & Barnes, supra note 121, at 687 ("Employers who can no longer engage in mandatory retirement arrange pension benefits to encourage voluntary retirement in order to spare themselves the attempt at justifying forced retirement of a particular individual."); Gurus in Government, Economist, May 20, 1995, at 21, 22 ("Employment laws mean that sacking public workers is expensive . . . because senior people have to be 'bought out'. . . ."); Jeanne Saddler, Playing Favorites? Older Workers Sue Over Early Retirement Plans, Wall St. J., Aug. 14, 1987, § 2, at 17 (observing that early retirement incentive plans have "become one of corporate America's most widely used tools for pruning its work force").
251. See Edward P. Lazear, Pensions as Severance Pay, in Financial Aspects of the United States Pension System 57, 57 (Zvi Bodie & John B. Shoven eds., 1983) (noting that pensions are being used to induce older workers to retire); Charles A. Shanor, Age Discrimination Issues: Reductions in Force, Voluntary Separation Programs, and Severance Benefits Litigation, C669 ALI-ABA Course of Study Materials: Advanced Employment Law and Litigation 369, 385 (1991) (noting that plans offer lump sums and other incentives which augment existing retirement benefits in order to induce early retirement); Charles B. Craver, The Application of the Age Discrimination in Employment Act to Persons Over Seventy, 58 Geo. Wash. L. Rev. 52, 110 (1989) (observing that businesses that "may no longer rely upon mandatory retirement policies to terminate older employees . . . will be forced to resort to voluntary retirement incentives"); Frolik & Barnes, supra note 121, at 687 ("Employers who can no longer engage in mandatory retirement arrange pension benefits to encourage voluntary retirement in order to spare themselves the attempt at justifying forced retirement of a particular individual."); Gurus in Government, Economist, May 20, 1995, at 21, 22 ("Employment laws mean that sacking public workers is expensive . . . because senior people have to be 'bought out'. . . ."); Jeanne Saddler, Playing Favorites? Older Workers Sue Over Early Retirement Plans, Wall St. J., Aug. 14, 1987, § 2, at 17 (observing that early retirement incentive plans have "become one of corporate America's most widely used tools for pruning its work force").
252. See OWBPA Hearings, supra note 22, at 207 (statement of Association of Private Pension and Welfare Plans) ("In order to maximize the effectiveness of early retirement window plans, employers often . . . limit the program to an age band of five to fifteen years."); Shanor, supra note 176, at 385 (stating that because programs are related to retirement eligibility, in almost all cases they are targeted at employees within protected age group); see also Richard G. Kass, Early Retirement Incentives and the Age Discrimination in Employment Act, 4 Hofstra Lab. LJ. 63, 64 (1986) (noting that most ERIPs withdrew or severely reduced benefits after age 55); Saddler, supra note 176, at 17 (discussing debate over ERIPs that offer benefits only to younger workers and typically exclude workers over 65 from participating).
253. See OWBPA Hearings, supra note 22, at 207 (statement of Association of Private Pension and Welfare Plans) ("In order to maximize the effectiveness of early retirement window plans, employers often . . . limit the program to an age band of five to fifteen years."); Shanor, supra note 176, at 385 (stating that because programs are related to retirement eligibility, in almost all cases they are targeted at employees within protected age group); see also Richard G. Kass, Early Retirement Incentives and the Age Discrimination in Employment Act, 4 Hofstra Lab. LJ. 63, 64 (1986) (noting that most ERIPs withdrew or severely reduced benefits after age 55); Saddler, supra note 176, at 17 (discussing debate over ERIPs that offer benefits only to younger workers and typically exclude workers over 65 from participating).
254. See OWBPA Hearings, supra note 22, at 207 (statement of Association of Private Pension and Welfare Plans) ("In order to maximize the effectiveness of early retirement window plans, employers often . . . limit the program to an age band of five to fifteen years."); Shanor, supra note 176, at 385 (stating that because programs are related to retirement eligibility, in almost all cases they are targeted at employees within protected age group); see also Richard G. Kass, Early Retirement Incentives and the Age Discrimination in Employment Act, 4 Hofstra Lab. LJ. 63, 64 (1986) (noting that most ERIPs withdrew or severely reduced benefits after age 55); Saddler, supra note 176, at 17 (discussing debate over ERIPs that offer benefits only to younger workers and typically exclude workers over 65 from participating).
255. See OWBPA Hearings, supra note 22, at 207 (statement of Association of Private Pension and Welfare Plans) ("In order to maximize the effectiveness of early retirement window plans, employers often . . . limit the program to an age band of five to fifteen years."); Shanor, supra note 176, at 385 (stating that because programs are related to retirement eligibility, in almost all cases they are targeted at employees within protected age group); see also Richard G. Kass, Early Retirement Incentives and the Age Discrimination in Employment Act, 4 Hofstra Lab. LJ. 63, 64 (1986) (noting that most ERIPs withdrew or severely reduced benefits after age 55); Saddler, supra note 176, at 17 (discussing debate over ERIPs that offer benefits only to younger workers and typically exclude workers over 65 from participating).
256. See, e.g., Saddler, supra note 176, at 17 (noting AARP's opposition to North Tonawanda, N.Y. school system program offering bonuses and added pension benefits to workers under certain age).
257. See OWBPA Hearings, supra note 22, at 173-75 (statement of Horace B. Deets, Executive Director, AARP).
258. See id. at 173 (statement of Horace B. Deets, Executive Director, AARP) (recognizing that ERIPs can benefit employers and employees); id. at 188-90 (AARP report to Congress) (discussing AARP's stance on ERIPs and impact of Benefit Protection Act on preexisting law).
259. In order to maintain a sufficient level of inducement for the younger older workers, the incentives were not devalued. Instead, employers suffered the increased cost of buyouts, the cost of which was ultimately borne by the next generation of employees through depressed wage rates. The huge commitment of resources was greater than anything that could have been expected under the original life-cycle contracts.
260. See Richard A. Ippolito, Pension Security: Has ERISA Had Any Effect?, 11 Reg. 15, 19-20 (1987) (arguing that unionized workers' demands for higher wages were met by underfunding pensions).
261. See OWBPA Hearings, supra note 22, at 38-40 (statement of Robert F. Laufman) (describing circumstances of three elderly retirees who would get more money if OWBPA were in place to guarantee benefits); id. at 54 (statement of R. Gaull Silberman, Vice Chairman, EEOC) (declaring that OWBPA would bring benefits back); see also Has High Court Imperiled Older Workers' Benefits?, supra note 137, at 116 (quoting AARP attorney Chris Mackaronis, who maintained that Betts must be overturned through legislative action to restore older workers' legal rights).
262. See OWBPA Hearings, supra note 22, at 38-40 (statement of Robert F. Laufman) (describing circumstances of three elderly retirees who would get more money if OWBPA were in place to guarantee benefits); id. at 54 (statement of R. Gaull Silberman, Vice Chairman, EEOC) (declaring that OWBPA would bring benefits back); see also Has High Court Imperiled Older Workers' Benefits?, supra note 137, at 116 (quoting AARP attorney Chris Mackaronis, who maintained that Betts must be overturned through legislative action to restore older workers' legal rights).
263. See OWBPA Hearings, supra note 22, at 171 (statement of Horace B. Deets, Executive Director, AARP) (maintaining that severance and pension benefits are fundamentally different); id. at 222 (Burton D. Fretz, Executive Director, National Senior Citizens Law Center) (noting that denial of benefits hits older workers hardest).
264. See id. at 171 (statement of Horace B. Deets, Executive Director, AARP).
265. Id. at 172 (statement of Horace B. Deets, Executive Director, AARP).
266. See id. at 222 (statement of Burton D. Fretz, Executive Director, National Senior Citizens Law Center) (noting that, at time of hearing, less than half of older workers who lost their jobs became re-employed).
267. Id. at 315 (statement of ERISA Industry Committee, by James D. Short, Vice President).
268. Id.
269. See id. at 385 (letter of Dick Warden, Legislative Director, United Auto Workers) (asserting that integrated benefit programs are essential to assuring continuation of coverage for lives of workers and their families); see also id. at 322 (statement of C.A. Corry, Chairman, USX Corp.) (explaining that OWBPA would result in double benefits for some workers at expense of others).
270. See Donald R. Stacy, A Possibility of Avoiding "Double Dipping" into Severance and Pension Payments, 5 Lab. Law. 1, 2-3 (1989) (noting additional point that while pension-eligible individuals tend to be older, this will not be so in every case).
271. Cyril F. Brickfield, Pension Policy: Economic and Political Forces, 1980 Nat'l J. 2004, 2007.
272. See Legislative History of the Older Workers Benefit Protection Act, 136 Cong. Rec. H10020 (daily ed. Oct. 18, 1990) (comments of Rep. Clay).
273. See OWBPA Hearings, supra note 22, at 197 (statement of Association of Private Pension and Welfare Plans) (noting also that prohibition of integrated plans would prevent fair allocation of benefits).
274. See id. at 165-390.
275. See id. at 321-403.
276. See Donald B. Thompson, Big Steel Doesn't Think Pact is Anemic, Industry Wk., Mar. 21, 1983, at 19.
277. See Stacy, supra note 191, at 3.
278. See id.
279. Id.
280. See Betts Bills Revised, Pensions & Investment Age, Dec. 11, 1989, at 33, 33 (noting labor unions' concerns that bills could threaten legality of early retirement plans and integrated benefits programs).
281. See Nicole Weisenee, States News Service, Mar. 28, 1990 (noting AARP's position).
282. See OWBPA Hearings, supra note 22, at 385 (statement of Dick Warden, Legislative Director, United Auto Workers).
283. See John H. Langbein & Bruce A. Wolk, Pension & Employee Benefit Law 376 (2d ed. 1995).
284. This of course refers to the classic Carotene Products argument defining membership in a "discrete and insular group." Carolene Prods. Co. v. United States, 304 U.S. 144, 153 n.4 (1938). Walter Kamiat helped us with the formulation of this argument.
285. On one view, that is already the basic state of affairs in the United States: A retired American today is probably the freest human being ever to walk the earth. Assuming that basic needs are met by a pension, Social Security, Medicare and investment income, the retiree lives in a perpetual paradise of leisure and recreation. If the retiree stays healthy, this special status can be enjoyed for 15 to 20 years. There is time to fish all day and golf every afternoon. Kingsley Davis, Our Idle Retirees Drag Down the Economy, N.Y. Times, Oct. 18, 1987, at A31; see also Adam Gopnick, The Chill, New Yorker, Mar. 17, 1977, at 64 (chronicling French political agitation for mandatory retirement age of 55).
286. See generally Choice Over Time (George Loewenstein & Jon Elster eds., 1995) (presenting empirical and experimental literature on skewed perceptions of risk and reward over time).
287. Strikingly, this argument did not emerge in the legislative debates over the 1986 amendments to the ADEA. Instead, the simpler invocation of antidiscrimination carried the day.
288. See Hurd, supra note 100, at 567 tbl.1, 568 tbl.2. These data, derived from the Current Population Reports of the U.S. Bureau of the Census, show, for example, that between 1900 and 1990, the percentage of Americans aged 55 and above increased from 9% to 20%. In addition, the life expectancy of those aged 65 increased from 11.3 to 14.9 years for men and from 12.0 to 19.2 years for women. Perhaps more striking is the phenomenon aptly described by Judge Posner: "Forty years ago, most 60-year-olds and all 70-year-olds were thought, by themselves and others, 'old.' Today a great many people retain a reasonable simulacrum of 'youth' (more precisely of middle age) until their late seventies." Posner, supra note 49, at 49. Posner then adds: "Of course, the shift has costs. One is the cost in medical care of keeping young. Another is the added burden of elder care on young and middle-aged adults, for along with a shift from old to not-old has come a shift from dead to old." Id.
289. EEOC v. Wyoming, 460 U.S. 226, 230-31 (1983) (listing conclusions of Secretary of Labor, confirmed through "extensive factfinding," which led to creation of ADEA).
290. This argument is supported by Posner, supra note 49, at 63 (claiming that those who live to old age "are apt to be healthier than average, of course, but also more intelligent, better educated, and more affluent, since health, income, education, and intelligence are all positively correlated").
291. Richard A. Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws 449 (1992).
292. See Hurd, supra note 100, at 572 tbl.7.
293. Instead of measuring total percentage of women in the workforce, it is necessary to measure the rate at which women who are in the workforce are retiring. This measure is statistically termed the "retirement hazard rate," which simply denotes the likelihood with which women in the workforce will retire during defined periods of time. See id. at 571. For women aged 55 to 64, the hazard rate increased from .207 to .364 from 1957 to 1987. See id. at 572 (noting that by 1987 "the hazards of men and women were about the same").
294. A clear example of the early retirement phenomenon is government employees. Federal employees can retire fully vested in very generous pensions after age 55 and 30 years of service; most state and local governments also tend to provide more generous benefits than private systems. See James H. Schulz, The Economics of Aging 247-48, 250 (5th ed. 1992). One study found that in fiscal 1978, 59% of male civil service employees who retired were 60 or younger. See id. at 236. These figures are completely out of line with the private sector. See Herman B. Leonard, The Federal Civil Service Retirement System: An Analysis of Its Financial Condition and Current Reform Proposals, in Pensions, Labor, and Individual Choice 399, 413 (David A. Wise ed., 1985) (noting that only 7% of private sector employees retire before reaching 60).
295. The divergent trends can be derived from the tables in the Appendix. These tables examine workforce participation trends by age and educational level. While more precise data is hard to obtain, these tables clearly show an accelerated decline in workforce participation over time for the four education levels that are surveyed. Evidently, while all groups (of males) have had an earlier rate of withdrawal from the labor force, that trend is far less pronounced for the more educated sectors of the workforce.
296. The ADEA's prohibition on mandatory retirement in the university setting went into effect on December 31, 1993. Good data on the impact on universities are therefore difficult to obtain. One study at the University of Chicago predicted that up to 30% of the instructional budget was likely to be redirected as a result of the ADEA into either increased salary for expensive senior faculty that would have retired or costly buyouts of contracts. See Epstein, supra note 212, at 468-70.
297. There is evidence of increasing pressure on the institution of tenure at universities across the country, although the links to the end of mandatory retirement are speculative at present. See Dr. William H. Cunningham, Tenure Revisited; Careful Peer Reviews No Threat to Freedom, Austin Am. - Statesman, Sept. 2, 1996, at All (reporting statement of University of Texas Chancellor on need to allay public concerns over faculty productivity); Mary Ann Roser, Tenure at UT is Under Review, Austin Am. - Statesman, Aug. 31, 1996, at A1 (reporting efforts by University of Texas to reevaluate tenure protections in light of legislative initiatives toward greater professor accountability).
298. For a systematic comparison of defined-benefit and defined-contribution pension plans, see Zvi Bodie et al., Defined Benefit Versus Defined Contribution Pension Plans: What are the Real Trade-offs?, in Pensions in the U.S. Economy 139, 139-62 (Zvi Bodie et al. eds., 1988).
299. See Posner, supra note 49, at 300 (comparing such plans to defined-compensation plans, which, not being paid until retirement, can be invested to be protected from inflation).
300. Additionally, employers may cap benefit levels based on the salary achieved after a set number of years of service. See 29 U.S.C. § 623(i)(2) (1994).
301. Under the relevant provision of ERISA, "A plan shall not be treated as failing to meet the requirements of this subparagraph solely because the plan imposes (without regard to age) a limitation . . . on the number of years of service or years of participation which, are taken into account for purposes of determining benefit accrual under the plan." 29 U.S.C. § 1054(b)(1)(H)(ii) (1994) (also codified at 26 U.S.C. § 411(b)(1)(H)(ii) (1994)). Since capping defined benefits by a fixed number of years of service or by a fixed amount and did not employ an age classification, it avoided the strictures of the ADEA. For a general discussion of ERISA benefits, see Langbein & Wolk, supra note 204, at 384-85.
302. ERISA defines NRA as whatever is provided by the plan, or the later of age 65 or the fifth anniversary of the participant's participation in the plan as the default. See 29 U.S.C. § 1002(24) (1994). However, the NRA may not exceed 65. See id.
303. This move was spurred by the requirement of greater levels of minimum employer funding of defined-benefit plans following the enactment of ERISA and the Pension Protection Act of 1987. ERISA created the Pension Benefit Guarantee Corporation (PBGC), which serves as a public guarantor of underfunded defined-benefit pension plans. By 1993, the PBGC had incurred $5 billion in liabilities, a figure that the federal government budget for fiscal year 1995 projected would increase to between $45 billion and $70 billion. The PBGC has responded by tightening the funding rules and increasing insurance fees for defined-benefit plans which, in turn, has encouraged the transition to defined-contribution plans. See Randall P. Mariger, Public Policy Toward Pensions: Why Defined Contribution Pensions Dominate Government-Insured Defined Benefit Pensions, 95-3 Finance and Economics Discussion Series 1-3 (1995). Another factor in the push toward defined-contribution as opposed to defined-benefit plans was the ERISA requirement that pensions vest after 10 years, which was subsequently reduced to five years by the 1986 Tax Reform Act. See Laurence J. Kotlikoff & David A. Wise, The Wage Carrot and the Pension Stick: Retirement Benefits and Labor Force Participation 9 (1989). This requirement eliminated much of the Ponzi-scheme quality of defined-benefit plans that assumed high rates of attrition before vesting after 25 years, for example.
304. See B. Douglas Bernheim & John B. Shoven, Pension Funding and Saving, in Pensions in the U.S. Economy, supra note 219, at 88 (finding that in 1978, although 71.9% of pension plans were defined-contribution, 72.3% of all assets in pension plans were in defined-benefit plans); Kotlikoff & Wise, supra note 224, at 9; Pension and Welfare Benefits Admin., Abstract of 1990 Form 5500 Annual Reports, Private Pension Plan Bull., Summer 1993.
305. See Kotlikoff & Wise, supra note 224, at 97 (analyzing data from defined-benefit plans to show how employee retirement decisions are affected by incentive structure of pension plans).
306. Langbein & Wolk, supra note 204, at 376.
307. See id. at 379-80 (describing actuarial reductions that result from early retirement).
308. Id. at 384-85 (quoting and citing amendments to ERISA contained in Omnibus Budget Reconciliation Act of 1986, Pub. L. No. 99-509, § 9202(a), 100 Stat. 1874 (codified as amended at 29 U.S.C. § 1054(b)(1)(H) (1994))).
309. See id. at 382 (arguing that defined-benefit plans encourage earlier retirement than defined-contribution plans).
310. See generally Alan L. Gustman & Thomas L. Steinmeier, An Analysis of Pension Benefit Formulas, Pension Wealth, and Incentives from Pensions, in 10 Research in Labor Economics 53, 53-106 (Ronald Ehrenberg ed., 1989); Richard Ippolito, Toward Explaining Earlier Retirement After 1970, 43 Indus. & Lab. Rel. Rev. 556 (1990).
311. See generally Alan L. Gustman & Thomas L. Steinmeier, An Analysis of Pension Benefit Formulas, Pension Wealth, and Incentives from Pensions, in 10 Research in Labor Economics 53, 53-106 (Ronald Ehrenberg ed., 1989); Richard Ippolito, Toward Explaining Earlier Retirement After 1970, 43 Indus. & Lab. Rel. Rev. 556 (1990).
312. See James Schulz, Economics of Aging 77 (1988).
313. See Michael J. Boskin, Social Security and Retirement Decisions, 15 Econ. Inquiry 1, 13 (1977) (noting reasons why effect of Social Security benefits are more important than effect of income from other assets on probability of retirement).
314. See Gary Burtless & Robert A. Moffitt, The Joint Choice of Retirement Age and Postretirement Hours of Work, 3 J. Lab. Econ. 209, 230 (1985) (arguing that impact of Social Security on retirement probabilities and hours of work grows rapidly once individual reaches late 50s); Hurd, supra note 100, at 592 ("Apparently, many who work part-time after retirement choose hours close to the exempt amount in the earnings test.").
315. See Kotlikoff & Wise, supra note 224, at 97 (analyzing data from defined-benefit plans to reach this conclusion).
316. This feature of defined-contribution plans has not escaped notice. Complicated tax regulations require that some withdrawals begin at age 70 1/2. Furthermore, accelerated taxes on excess withdrawals limit the ability of individuals to draw down defined-contribution pensions in a short period. In addition, estate taxes on the unused portion of a retirement fund are levied prior to the collection of outstanding income tax liability. The effect for the unfortunate or unsophisticated is that the combination of estate taxes and deferred-tax liability can wipe out virtually the entire reserved savings at death. This is in turn offset by a congressional penchant for creating windows for withdrawals in which individuals may draw down their retirement assets without being subject to the accelerated taxes on excessive withdrawals. See generally Peter Passell, Economic Scene: Be Thrifty and Invest Well, and Then Wait for the Huge Tax Bill, N.Y. Times, Nov. 21, 1996, at D2 (discussing implications of 1996 law suspending 15% tax on "excess distributions" from retirement savings).
317. See Jolis, supra note 48, at 1844 (arguing that "ADEA is likely to be a better means of achieving desirable hands-tying than other legal doctrines potentially suited to that function").
318. Constant productivity review will result in a loss of dignity for older workers who would have been removed without stigma under the traditional mandatory retirement policies. See 1977 House Hearings, supra note 103, at 84 (statement of Harold P. Coxon, Jr., Director of Labor Law, U.S. Chamber of Commerce) (arguing that prohibiting mandatory retirement age forces employers to terminate for cause in place of mandating stigma-free retirement for all employees at a certain age). For-cause terminations necessarily entail an ugly exit for the older worker when the basis for that termination is the presumed exhaustion of one's individual abilities. But see id. at 8 (statement of Rep. Claude Pepper) (arguing that workers are not stigmatized by competency-based retirement).
319. Epstein, supra note 212, at 462-63.
320. See Schwab, supra note 33, at 23-24 & nn.52-59 (summarizing economic literature on costs of employee monitoring and suggesting substitutes for direct employee review).
321. On the end of mandatory retirement necessitating "for cause" terminations, see 1977 House Hearings, supra note 103, at 81 (statement of Harold P. Coxon, Jr., Director of Labor Law, U.S. Chamber of Commerce) (noting that "if people could not be retired at a certain date, employers would be forced to look for 'cause' as a basis for retirement or discharge in order to avoid bias charges"). Those determinations force employers to engage in increased monitoring of all employees. See Michael Schrage, Why a Multimedia Big Brother Looms over the Future of Work, Wash. Post, July 29, 1994, at B3 (discussing increased surveillance of all levels of employees in workplace). One consequence of increasing the number of "for cause" terminations is a likely increase in the number of ADEA suits. See 1977 House Hearings, supra note 103, at 102 (statement of Daniel E. Knowles, Director of Personnel, Grumman Aerospace Corp.) (arguing that without objective criteria, industry will be subjected to swell in charges of discrimination).
322. It is important to recall that the life-cycle arrangement serves to defer compensation from the most productive middle years to later stages of an employee's career when output would not independently justify an increased wage pattern. For those employees whose output versus salary was not measured carefully during their most profitable years, the sudden introduction of greater scrutiny threatens to destabilize the implicit contractual understanding of a career-term relationship.
323. See OWBPA Hearings, supra note 22, at 231 (statement of Mark S. Dichter on behalf of the Association of Private Pension and Welfare Plans, U.S. Chamber of Commerce, National Association of Manufacturers, and ERISA Industry Committee) ("In considering age discrimination legislation back in the 1960s, Congress understood that age discrimination is by its nature different from discrimination on the basis of race and sex."); id. at 231-32 (citing The Older American Worker: Age Discrimination in Employment, Report of the Secretary of Labor to the Congress Under Section 715 of the Civil Rights Act of 1964, at 2 (1965), reprinted in EEOC, Legislative History of Age Discrimination in Employment Act of 1967, at 20 (1981) (explaining that employers' reluctance to hire older workers was primarily due to "institutional arrangements - such as pension, seniority, insurance, and promotion-from-within policies")).
324. See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313-14 (1976) (per curiam) ("Instead, [old age] marks a stage that each of us will reach if we live out our normal span."); Frolik & Barnes, supra note 121, at 711 (describing programs that favor elderly, such as Social Security, as efforts to "ameliorate" old age since "we do not want to be old" ourselves).
325. See Peterson, supra note 122, at 70 ("[E]lderly Americans now have the highest level of per capita household wealth of any age group . . . ."); id. at 74 ("Today's seniors, represented by powerful lobbies and voting in disproportionate numbers compared with the young, are already a potent political force"); id. ("[P]er capita federal spending on the elderly towers eleven to one over federal spending on children.").
326. This second step was suggested by Doug Laycock.
327. See Max J. Schwartz, Distributions from Qualified Retirement Plans - The Basic Rules, in Understanding ERISA 337, 349 (Joseph R. Simone ed., 1995).
328. This proposal would have no impact on employees whose defined-contribution plans call for a lump sum payment upon retirement. Whether this proposal would induce employees to switch over to riskier equity investments rather than annuity programs is a subject fit for debate. This proposal might also make the employer, in effect, an insurer for employees who pursue more aggressive and riskier investment strategies by not penalizing them if their investments do not pan out. While this effect is possible, it is not clear that the investment decisions of employees throughout their careers are subject to a rational calculus of subsidizing risky investments by being able to work into their seventies at the employer's expense.
329. See Worth, supra note 174, at 426-29 (providing detailed explanation of how untargeted ERIPs create intergenerational transfer of wealth).
330. See Issacharoff, supra note 37, at 1248-49 (arguing that Epstein's analysis of mandatory retirement supports author's theory that applying ADEA to mandatory retirement rules results in wealth transfer to senior generation of employees).
331. This suggestion is broader than the salary set-off in the prior proposal. This ERIP reduction would be triggered by the total amount of annuity benefit available to the employee, even if the employee were under age 70 1/2 and had not yet begun to draw down on his pension.
332. This proposal is not as radical as it seems. Congress has already agreed to phase in a higher age for Social Security benefit eligibility, evidencing an intent to phase out the windfalls being captured by the oldest workers. See Peterson, supra note 122, at 76.
333. See, e.g., Markham v. Geller, 451 U.S. 945, 948 (1981) (Rehnquist, J., dissenting from denial of certiorari) ("This Court has never held that proof of discriminatory impact can establish a violation of the ADEA . . . ."); EEOC v. Francis W. Parker Sch., 41 F.3d 1073, 1077 (7th Cir. 1994) (holding that decisions "which merely tend to affect workers over the age of forty more adversely than workers under forty are not prohibited" by ADEA); Hiatt v. Union Pac. R.R., 859 F. Supp. 1416, 1433-36 (D. Wyo. 1994) (finding disparate impact liability not available under ADEA). A line of cases, however, accepts, more or less without analysis, the availability of disparate impact analysis under the ADEA. See, e.g., EEOC v. Local 350, Plumbers & Pipefitters, 998 F.2d 641, 648 n.2 (9th Cir. 1992); Wooden v. Board of Educ., 931 F.2d 376, 379 (6th Cir. 1991); MacPhereson v. University of Montevallo, 922 F.2d 766, 770-71 (11th Cir. 1991). For a thoughtful discussion of the relation between disparate impact liability and the ADEA, see Evan H. Pontz, Note, What a Difference ADEA Makes: Why Disparate Impact Theory Should Not Apply to the Age Discrimination in Employment Act, 74 N.C. L. Rev. 267, 288-320 (1995) (arguing absence of statutory basis for establishing disparate impact theory under ADEA).
334. See Matthew Miller, Agitpol, New Republic, July 8, 1996, at 16-17 (quoting then-presidential candidate Richard Lamm as arguing, "[m]y aging body can prevent your kids from going to college. . . . We as a society spend more money turning 80 year olds into 90 year olds than we do 6 year olds into educated 16 year olds").