Bisom-Rapp & Sargeant on U.S. and U.K. Age Discrimination Law

Susan Bisom-Rapp (Thomas Jefferson) and Malcom Sargeant (Middlesex, UK) have just posted on SSRN their article, Diverging Doctrine, Converging Outcomes: Evaluating Age Discrimination Law in the United Kingdom and the United States, which will be published in the Loyola University Chicago Law Journal.  Teh abstract:

This article compares age discrimination law and practice in the United Kingdom (UK) and United States (US) to discern convergences and divergences in legal doctrine, the law's normative underpinnings, and societal outcomes. Each country at first blush appears to pursue age discrimination protection using a distinct model. Age bias law in Britain adheres to what might be termed the European approach. That approach, grounded in the EU's Framework Directive on Equal Treatment in Employment and Occupation, is relatively recent in Britain, dating to October 2006. One distinguishing characteristic of UK law is the possibility of employer-justified compulsory retirement.

In contrast to the UK, the legal prohibition of age discrimination in the US is over four decades old, embodied in the Age Discrimination in Employment Act of 1967 (ADEA). The American approach prohibits compulsory retirement programs in order to combat negative, age-based stereotypes about when and how older workers should exit the labor market. Over time, however, US Supreme Court decisions have greatly weakened the ADEA's protections, making it difficult for plaintiffs to make out a prima facie case of age discrimination, making it easier for employers to defend against suit, and complicating the government's enforcement efforts. Also, aggressive corporate downsizing, very laxly regulated in the US, increasingly affects older workers, leaving them without employment at a point in their lives when finding replacement work is most difficult or for some impossible.

Despite what may appear as great doctrinal contrasts, however, the age discrimination laws of the UK and the US converge in many respects. Both systems view age stereotyping as an ill to be cured. Both countries ultimately provide for inferior legal protections against age discrimination as compared to other forms of prohibited workplace bias. Finally, both approaches to age discrimination render workers vulnerable in their later working years even though each nation's laws arguably arrive there by a different route.

This article argues that the deficiencies plaguing both systems are traceable to the incursion of a distinct economic imperative, applicable only to older workers, on what should be a civil or human rights approach to their treatment. Putting age on an even footing with other forms of bias – for example, race and sex – is necessary if the law is to eliminate the harm it seeks to redress.

I saw Susan present this article at the recent annual colloquium and it was very interesting, so definitely check it out.

-JH