AGE DISCRIMINATION

WITHIN REASON

Tish Sommers Testimony prepared for the Age

Discrimination Study of the U. S. Commission on Civil

Rights. The statement was developed with the assistance of Gerontology 504 (Older Women) at the Summer Institute of Andrus Gerontology Institute at the University of Southern California, which discussed the issues and made

recommendations as an action project.

Commission, September 26-27,1977.

Presented to the

The Age Discrimination Act of 1975 gives with one hand:

no person in the United States shall, on the basis of age be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance..." (Section 303) and takes away with the other:

Otherwise prohibited actions do not violate the law if:

the actions reasonably take into account age as a factor necessary to the normal operation or the achievement of any statutory objective of such program or activity; or differentiation made by such actions is based upon

reasonable factors other than age.

the

To negotiate the sticky questions these contradictory statements raise, the Commission is directed to study the issue and report back to Congress and the President, soliciting input from varied sources. This statement is offered as one such source. It covers a consideration of the "reasonableness" question, examines CETA as an example of the pattern and practice of age discrimination within one of the targeted Federal services, looks at other related

programs which interact with employment services, analyzes the compounding impact of sex on age discrimination, and then offers recommendations for the Commission's

consideration.

UNREASONABLE DISCRIMINATION:

The "reasonableness" qualifier is such an obstacle to enforcement of an age discrimination law that it must be tackled first. It would be better to have no law at all than one which presumes from the outset that discrimination is permissible as long as there is a good reason for it. From the legislative history it is clear that the

administration was having trouble with equal opportunity for women in Title IX sports at the time Congress was

considering the bill, and wanted to slow down any more drastic shifts of status.

Older persons had not been

complaining that much, so why open up an administrative can of worms? The "reasonableness" concept certainly put a lid on any precipitous action.

The Age Discrimination Study, also mandated by the law, provides an opportunity to question the advisability of retaining language which would have the opposite effect to providing relief for persons who experience age discrimination. Here are some points for consideration.

First, who decides what is reasonable? Presumably the administrators of the government programs under investigation have been asked whether their programs are discriminatory. How many have said that the obvious inequities by age currently practiced in services and benefits were not perfectly reasonable? The likelihood is that every single administrator could explain inequities

satisfactorily within that semantic framework.

Discrimination has always seemed perfectly reasonable to those who practice it, until its victims refuse to listen to reason any longer and protest effectively enough to get the laws and practices changed. It certainly seemed reasonable to limit women to areas of employment which extend unpaid homemaking duties into low paid industrial and commercial spheres, until women refused to be reasonable about it (which could be expected, considering their presumed limited reasoning ability). If it is to be the Congressmen and the Courts who decide, their sense of what is fitting or right is influenced a great deal by public opinion, which in turn is influenced by the degree of organization and clamor by the victims of discrimination themselves.

Second, is age discrimination essentially different than race or sex? Anyone who experiences the stigma of inferiority by virtue of age knows that to be old means to be a second class citizen, cheaper bus fares

notwithstanding.

Like race and sex, age is an "immutable

characteristic determined solely by accident of birth," is "subjected to a history of purposeful unequal treatment," is an "arbitrary distinction," and is certainly no more

complex.

The fact that it happens to everyone who lives long enough to experience it, regardless of sex, race, religious belief or sexual preference does not make that inferior status any easier to bear. In fact, that should provide more incentive to eradicate it. If everyone were subject to a dread disease, would not an intensive effort be made to find a cure? Even if there were good reason for discriminating by age, the constitutional principles of

equal protection and due process should take preference. Can one now talk of "unreasonable race discrimination"?

"unreasonable sex discrimination"?

qualifiers were taken for granted.

ΟΙ

Earlier, of course, such

Third, when choices must be made, whose needs should take priority? The "size of the pie" arguments provide rationale for exclusion of older people, and fit neatly into the reasonableness loophole. As long as government programs are permitted to prioritize people by age, the older population will receive short shrift, especially in anything that promotes independence and self-sufficiency, such as job related programs. ("They don't have long enough to live anyway," "supportive services cost too much," "they should move aside for the young," etc.) This type of

"reasonableness" assumes that given a choice between young and old, the elders should lose, which reinforces stereotypes and is based upon a static image of the pie. Translated into spheres other than human services, consider how quickly the military spending pie can increase with the first hint of an international crisis. No one speaks of reducing benefits to retired generals in that situation. The concept that one disadvantaged group should bear the burden for others similarly situated is cynical, unethical and unjust, in any case.

Fourth, is it reasonable to expect program directors to face undue administrative difficulties? Each shift of public policy brings cries of anguish from overburdened bureaucrats and dire predictions should the change be mandated.

Administrative inertia is a given. The will to

overcome it is the prime requisite, and that needs strong

legal backing.

As long as the reasonableness qualifier

remains in the law, the status quo will endure. Good will

alone, as with race and sex, is a weak substitute in the

fight for equity by age.

All in all, reasonableness is an unworkable concept. If equal treatment under law is judged essential to our way of life, it must remain so from cradle to grave. The problems inherent in the reasonablenes pitfall are well demonstrated by the verbal acrobatics which permeate the action plan of the Age Discrimination Study. This is not the fault of those working on the Study, but of the legislators who put in the qualifier in the first place. Its only constructive purpose might be as a job creation program for lawyers.

CETA: PURPOSEFUL DISCRIMINATION

To date, discussions on the age discrimination issue have centered on employment opportunity. Understandably so, since employment rights always have been central to every civil rights struggle, with such vital issues as education closely interrelated. The right to work for a living and choice of occupation is the essence of personal freedom.

CETA is the nation's primary manpower program. Almost 7 billion dollars were allocated for the last fiscal year, to address the basic problem of unemployment through training programs and public service employment. Along with elimination of mandatory retirement restrictions, a fair share of CETA for older persons is therefore key to that right to work for a living.

One reason so many older women and formerly retired men seek employment is that they cannot make ends meet with the