Professor Susan Bisom-Rapp spent Independence Day in Philadelphia, where she attended the International Labour and Employment Relations Association’s World Congress, which ran from July 2nd – 5th. The World Congress is held every three years and has only once before been held in the United States. In 1995, the meeting was held in Washington, D.C.
On July 5, Professor Bisom-Rapp and her British co-author, Professor Malcolm Sargeant, who teaches at Middlesex University Business School (London, U.K.), presented their paper Diverging Doctrine, Converging Outcomes: Age Discrimination Law in the U.K. and the U.S. In particular, Professors Bisom-Rapp and Sargeant are interested in the concept of involuntary retirement and how it affects older workers in both countries. Unlike in the U.S., where mandatory retirement policies are illegal, in the U.K. such policies may be justified by employers if the policy has legitimate aims and it appears retirement is an appropriate and necessary way to meet those aims. The U.K. Supreme Court’s first case evaluating such a policy was Seldon v. Clarkson Wright and Jakes, decided in April 2012. In Seldon, the Court held that a policy requiring retirement at age 65 could be justified by two aims: 1) a goal of intergenerational fairness, aimed at promoting access to jobs by younger generations; and 2) a goal of employee dignity, which is promoted by avoiding costly and divisive disputes about individual older workers’ performance. Bisom-Rapp and Sargeant note that neither of those aims has empirical support. There is no proof, for example, that in a given case, mandatorily retiring older workers leads to opportunities for younger workers. Additionally, the co-authors contest the idea that ousting older workers from their jobs based on age is a dignified process.
In the U.S., with few exceptions, mandatory retirement policies are deemed a violation of the prohibition of age discrimination. The American system is said to combat negative stereotypes about older worker competence because it requires employers to use individualized criteria to evaluate the workers they intend to dismiss. Age, in the U.S., may not be used to remove an employee from a job.
Bisom-Rapp and Sargeant first ask which approach is more beneficial for older workers – the system in the U.K., which permits legally justified compulsory retirement or the U.S. approach, which would seem to require non-age related, individualized factors – like employee performance or cost – be evaluated before older workers may be dismissed. They then argue that the differences between the systems are not as great as they seem. “While superficially there are significant differences in legal doctrine in the U.K. and the U.S., over time, and accelerating during and in the aftermath of the Great Recession, a form of de facto involuntary retirement has been imposed on at least some American older workers,” says Professor Bisom-Rapp.
The conditions that create de facto mandatory retirement in the U.S. are several. First, age discrimination law itself has been greatly weakened by recent decisions of the U.S. Supreme Court. Presently, age discrimination claims are doctrinally more difficult to prove than are discrimination claims on other bases, such as race and sex. It is therefore increasingly difficult for older workers to use the law to challenge employer decision-making as age-biased. Second, those older workers who do lose their jobs are especially harmed by a lawful form of employment discrimination – discrimination against the unemployed. Relatively unheard of before the start of the Great Recession, reports of employers excluding the unemployed from consideration for open positions began surfacing in 2010. This perfectly lawful type of discrimination, at least on the federal level and in most states, has an adverse impact on older workers, who traditionally have more difficulty finding replacement work after losing a job. Such policies may greatly reduce the chance for older workers to get back on their feet after job loss, thereby hastening their departure from the labor market – or , in other words, forcing them into retirement.
A final factor to consider relative to de facto mandatory retirement is the extent to which older workers lost their jobs as part of employers’ aggressive downsizing since the start of the Great Recession. Since the recession began in December 2007, the unemployment rate for workers 55 and over has increased more than for any other group of workers. The average length of unemployment for those 55 and over in May 2012 was 56 weeks. American older workers subject to downsizing and prolonged periods of unemployment may experience financial pressures that make early retirement, in the form of early Social Security claiming, not only attractive but necessary. Indeed, there is evidence that in 2009 and 2010 the numbers of workers claiming early Social Security benefits at age 62 was far greater than predicted.
“Given these facts,” notes Professor Bisom-Rapp, “it may be legally accurate to say that compulsory retirement is prohibited in the U.S. But given reality, are there some employers accomplishing the very same thing under different guise?” More importantly, is the U.S. system, which permits these conditions to flourish, better than the U.K. approach? Considering that the outcome for many older workers in both countries is economic vulnerability or involuntary withdrawal from the labor market, the co-authors have trouble rating one system as more beneficial for older workers than the other. Ultimately, argue Professors Bisom-Rapp and Sargeant, if our countries are to vanquish age discrimination in the workplace, at a minimum that form of bias must be placed on equal footing with other forms of protected status.