Judicial Notebook

The 1967 federal Age Discrimina-tion in Employment Act (ADEA) protects employees 40 years old and older from age bias in employment decisions. In a typical ADEA claim, employees older than 40 years assert that workers younger than 40 have received preferential treatment based on age rather than merit. In a twist on this scenario, however, the U.S. Supreme Court in Cline v. General Dynamics Land Systems Inc. (No. 02-1080) (71[40] U.S.L.W. 3659), will review a ruling by the Sixth Circuit that claims of "reverse discrimination" can also be pursued under the ADEA.

In this case, a group of employees between 40 and 49 years old claimed that they had been discriminated against by a collective bargaining agreement that provided retirement benefits only to those employees older than 50. A lower court, in accord with prior rulings of the First and Seventh Circuits, held that the ADEA was intended only to prohibit employment decisions that favored younger over older employees and does not apply to instances of reverse discrimination. The Sixth Circuit (296 F.3d 466), however, determined that the ADEA prohibits all employment decisions based on age--rather than merit--that discriminate against any individual 40 years old or older, even though in this case older workers actually benefited from the discrimination.

The outcome is likely to hinge on how the Supreme Court interprets the language of the ADEA. There is not likely to be a challenge to Congress's initial finding that older workers face considerable age-based discrimination in the workplace, a finding that social science research helped establish and continues to support. However, there are relevant related issues raised by this case that psychological research can help inform.

For example, is it ever appropriate to use age-based stereotypes when making employment decisions and, if so, under what circumstances? Or should all such decisions be individualized and based strictly on merit?

Social science research has indicated that there is some diminishment in capabilities with age but that it varies considerably across individuals and tasks. At the same time, older workers may, in an employer's view, have a wealth of experience to draw upon that outweighs any possible diminishment. An employer may assign considerable value to this experience or to such workers' lengthy history of reliable and effective work. Indeed, an employer may for such reasons prefer older workers over younger workers. As a result, as in Cline, older workers may be perceived by an employer to be in need of or entitled to greater benefits.

A charge to researchers

The ADEA was crafted to combat negative stereotypes about declining capabilities associated with advancing age and clearly prohibits employers' use of stereotypes that younger workers are inherently more qualified than older workers.

There was a period of time when reliance on any stereotype was viewed as fundamentally flawed by social scientists. However, more recent research has shown that the use of stereotypes is a complex phenomenon and that their use is at least to some extent an inevitable and not necessarily inappropriate heuristic device that facilities the cognitive processing of large amounts of information. A fully individualized decision may not always be feasible, particularly within the context of the fast-paced decision-making associated with employment. At the same time, there is a continuing recognition that the unscrutinized use of stereotypes can have negative effects.

The question raised by Cline is whether an age-based decision that favors older workers should be permitted when one that disfavors them is not allowed. One of the issues posed by this case is whether reverse stereotypes based on age are sufficiently reliable and non-injurious to justify their use or whether age should generally not be taken into consideration in an employment decision.

Social science research can help ascertain whether stereotypes that are intended to have a positive benefit for older workers have harmful effects similar to those of the negative stereotypes that led to the enactment of the ADEA.

For example, what impact does the use of this stereotype have on both the group being benefited (older workers) and the group to whom the benefit is being denied (younger workers)? Do such benefits enhance morale among older workers who otherwise may be demoralized by a sense that their work is not as valued because of prevalent negative stereotypes about older workers? Do enhanced benefits provided only to older workers create resentment and antipathy among younger workers? Do enhanced benefits level the playing field or create greater disparities?