Tuesday, January 8, 2019

New Article: Age, Time & Discrimination

Professor Alexander A. Boni-Saenz at Chicago Kent has uploaded on SSRN his forthcoming article Age, Time & Discrimination.

Here is the abstract of his article

Discrimination scholars have traditionally justified antidiscrimination laws by appealing to the value of equality. Egalitarian theories locate the moral wrong of discrimination in the unfavorable treatment one individual receives as compared to another. However, discrimination theory has neglected to engage seriously with the socio-legal category of age, which poses a challenge to this egalitarian consensus due to its unique temporal character. Unlike other identity categories, an individual’s age inevitably changes over time. Consequently, any age-based legal rule will ultimately yield equal treatment over the lifecourse. This explains the weak constitutional protection for age and the fact that age-based legal rules are commonplace, determining everything from access to health care to criminal sentences to voting rights. The central claim of this Article is that equality can neither adequately describe the moral wrong of age discrimination nor justify the current landscape of statutory age discrimination law. The wrong of age discrimination lies not in a comparison, but instead in the deprivation of some intrinsic interest that extends throughout the lifecourse. Thus, we must turn to non-comparative values, such as liberty or dignity, to flesh out the theoretical foundation of age discrimination law. Exploring this alternative normative foundation generates valuable insights for current debates in discrimination theory and the legal regulation of age.

The article will be published in vol 53 of the Ga. Law Review.



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Very interesting.

It’s human nature to be generation aware. Baby boomers think of themselves as having a unique culture which they share with others of their same age group. They differentiate themselves from other generational groupings such as the World War II (Greatest) generation; the Silent Generation; Millennials, etc.

That generational awareness results in transactional differentiation in which older generations are viewed as parental etc. in the parent, child, adult typology of transactional thinking. We typically lapse into parent-child dynamics. It takes conscious effort to move into adult interactions.

The nature of age discrimination is that it allows the reversal of the parent-child relationship, in which the parent is the older person and the child is the younger. For the younger generation that reversal can be empowering, even exhilarating. The anti-discrimination dream is of a world in which we all accept the legitimacy of everyone we encounter. In transactional terms, that’s the adult world.

That’s difficult when they may have other views from your own. Still, we can learn from each other if we listen with an open mind and an open heart. It’s particularly difficult to remain adult when others may seem combative. They may be so committed to their experience to the extent that we have to let them stay in that smaller world. Some people are unable to let go of their parent-child fantasies.

Hence, there is a natural human tendency to marginalize the elderly. As the child takes on responsibility, say, for finding a place for mom, the call to that responsibility establishes the child as parent to the birth parent.

It’s natural to marginalize older people as different from the current power generation. That’s embedded in human nature. It’s also the source of many jokes about the elderly. And we all enjoy jokes about older people who stop on green and go on red (though that is alarming as a driving element).

If intergenerational discrimination is as embedded as the human tendency toward tribalism which has now so divided the nation, it’s a human tendency that will be hard to legislate out of existence.

Posted by: Jack Cumming | Jan 10, 2019 9:15:17 AM

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