Mises Daily

Should Age Discrimination Be Legal?

Concerning the issue of age discrimination, the Supreme Court, in Meacham v. Knolls,Download PDF said that the burden of proof resides on the employer. If a company lays off too many older people (meaning, incredibly, people older than 40), it is under the gun, and must show that factors other than age account for the disparate impact. Otherwise, the courts will rule in favor of the plaintiffs and the business will be forced to fork over, even to the point of bankruptcy.

The age-discrimination law in question is 40 years old and an embedded part of the machinery of social planning by the courts. This decision is yet another move toward government control, but the real problem is more fundamental. Step back and think what it means for the government to make and enforce such a law.

Labor relations are as complex as any human relations. There are many reasons why people choose to associate or not associate. How do you decide whom to invite to a birthday? What are the standards you use? There is a scarcity of space and food, so you must discriminate in some way. There is no choice about that.

Think of the last party you held. There are some people you did not invite simply because you can’t stand those people, usually for many reasons. And there are some who just might not mix well with others. Some people you want to invite but cannot because you have to cut the list somewhere.

Now imagine that the government appoints a party planner who says that you can invite or not invite whomever you want, provided that one consideration is not part of the mix: you must not decline to invite someone on grounds of hair color. Now, it may never have occurred to you to think along these lines. But now you have to. You notice that you have no redheads attending the party, much to your alarm.

What if this fact is taken as evidence that you are discriminating? Will it? You can’t know for sure. You think again: even if no redheads are coming, this is surely not the reason why you are not inviting them. There are other factors, too many factors to name. In any case, how can the state’s party planner know for sure what your motivations are? Isn’t it astounding that a government agency would presume to read your mind, know your heart, and discern your innermost emotions and motives?

Truly it is totalitarian.

It is precisely the same in workplace management. There are an unending variety of factors that go into the makeup of the workforce of a single firm. How the mix turns out in the end is not something you can entirely plan. It might be dictated by any of a million factors depending on time and place.

The state says that you the employer may not discriminate on grounds of age. Fine, you think. You would never think to do that. You just want a job well done. But let’s say your firm is heavily into new technologies. Everyone must have great programming skills and quickly adapt to new web interfaces and innovations.

That has no direct bearing on age. A 60-year-old can in principle be just right for the job. But it so happens that the young have more technological skills than the old. Your workforce, then, is dominated by people under 40. Then a Federal Reserve recession comes along, and you must choose the better programmers. The remaining people over 40 are cut.

Have you discriminated on grounds of age? Not to your mind. You are thinking only of job skills and profitability. But from the perspective of a government planner with an agenda, it is different. Looking at the facts, it seems like a clear case of age discrimination.

With this new court decision, the burden of proof is on you to show otherwise. But how can something like the absence of a motivation be demonstrated? Now, it is possible or even likely that you might be able to show that factors other than age constitute the main reason for the disparity. But it is a toss-up as to whether the court or the EEOC will agree with you.

The only way to be off the hook completely is to pad your workforce with people hired because they are older. In the name of proving that you are not discriminating against a group, your only protection is to discriminate in favor of that group. And by doing so, you are necessarily discriminating against other groups, since young people will be turned away to make room for the older group.

But isn’t this a case of age discrimination of a “reverse” sort? Of course. After all, everyone is either young or old. The charge that the employer is weighing decisions by age can be trumped up in every case one can imagine. Here we see an amazing thicket, created entirely by a state that presumes the capacity and the right to read minds like a swami guru or mystic soothsayer. The state has assigned to itself superhuman powers, and it is up to you to obey.

In contrast, here is what the free market permits. Employers can hire or fire for any reason they want. Employers can be biased, bigoted, or have poor judgment, but it is the employers’ judgment to make. The same is true of employees. They can quit for any reason, including one that discriminates against some trait of the employer.

Imagine if the state said that you may not quit your job on grounds that you dislike your boss’s age, race, religion, or sex. If that is your reason, you must stay working there. We would all recognize that this is a case of involuntary servitude. It is an attack on freedom. So why do we not see that it is the same with the employer?

Under freedom, if an employer decides, for no good reason, that employees should not be older than 40, that is his judgment. If it is a bad decision, the competition will gain an edge by hiring the people who have been passed over.

A final point about the employee. Would you want to work for a company that doesn’t really want you there, that is only maintaining your job for fear of the bureaucrat? That is not a prescription for a happy life. The happy life comes through permitting maximum freedom to associate and choose — a freedom that applies to everyone and under all circumstances, without exception.

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