Age Discrimination Law Research Articles

Promoting Innovation or Exacerbating Inequality? Laboratory Federalism and Australian Age Discrimination Law

According to laboratory federalism, federal systems can promote governmental innovation and experimentation, while containing the risks of innovation to only one jurisdiction. However, it is unclear whether these benefits are realised in practice and whether states are actually effective ‘laboratories’. This article evaluates the extent to which laboratory federalism is occurring in practice, focusing on a case study of age discrimination law in Australia. Drawing on related ideas of democratic experimentalism; legal doctrinal analysis of age discrimination law in the Australian states and territories, and at the federal level; and qualitative expert interviews with 66 Australian respondents, I map the potential and limits of laboratory federalism in advancing age equality. I argue that, in this particular context, the benefits of experimentation may be outweighed by the resulting difficulties of enforcing age discrimination law, exacerbating inequality in practice. The federal structure has led to a confused and confusing patchwork of legal regulation. There is therefore a need for stronger federal structures to facilitate mutual learning and better realise the benefits of laboratory federalism.

Are employer-dismissed older workers adequately compensated? Comparison of Australian and UK age discrimination and dismissal cases

This paper focuses on the legal remedies for age discrimination and dismissal of older workers, identifying the factors that courts and tribunals in Australia and the United Kingdom (UK) consider when calculating compensation for two forms of damages: injury to feelings and future losses. A secondary aim is to determine whether these factors adequately consider the unique workforce participation challenges faced by older workers in both countries. Considering the similarities between Australian and UK age discrimination law and given that the latter jurisdiction has had considerably more successful cases than the former, this study adopts a comparative approach and draws on UK cases to inform the development of Australian age discrimination law. Analysis of all successful Australian and a selection of successful UK age discrimination and dismissal cases spanning from 2017 to 2020 suggests that Australian law might be strengthened by: adopting a scale of awards similar to the guidelines established in Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 (‘ Vento’) for recognising and awarding injury to feelings; and by more readily awarding future losses, particularly for claimants who plan to work or who are already working past retirement age.

AlysiaBlackham, Reforming Age Discrimination Law: Beyond Individual Enforcement, Oxford: Oxford University Press, 2022, hb, 400 pp (also available as e‐book), £80.00

The Modern Law ReviewEarly View BOOK REVIEW Alysia Blackham, Reforming Age Discrimination Law: Beyond Individual Enforcement Oxford: Oxford University Press, 2022, hb, 400 pp (also available as e-book), £80.00 Elaine Dewhurst, Corresponding Author Elaine Dewhurst [email protected] Senior Lecturer in Employment Law, University of Manchester. Elaine Dewhurst [email protected]Search for more papers by this author Elaine Dewhurst, Corresponding Author Elaine Dewhurst [email protected] Senior Lecturer in Employment Law, University of Manchester. Elaine Dewhurst [email protected]Search for more papers by this author First published: 25 April 2023 https://doi.org/10.1111/1468-2230.12807 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Early ViewOnline Version of Record before inclusion in an issue RelatedInformation

Abandoning individual enforcement? Interrogating the enforcement of age discrimination law

AbstractDiscrimination law primarily relies on individual enforcement for addressing discrimination at work; yet those who are most impacted by discrimination are likely the least able to enforce their rights. The question then becomes: what role should individual enforcement play in discrimination law? Can we effectively abandon individual enforcement as part of the legislative model? Drawing on a mixed method, multi-year comparative study of the enforcement of age discrimination law in the UK, Australia and Sweden, this paper considers the gaps, limits and risks of the individual enforcement model in discrimination law. Integrating doctrinal analysis; statistical analysis of claims and cases, and data from the EU and OECD; qualitative expert interviews; and a survey of legal practitioners, this paper argues that while individual enforcement is inherently limited as a tool for achieving systemic change, it must remain part of any legislative model. Reflecting on the experience in Sweden, where individual enforcement of discrimination law is significantly curtailed, the paper posits that individual rights and individual enforcement remain important complements to other regulatory tools, particularly in jurisdictions with strong enduring age norms. Abandoning or severely restricting individual enforcement is unlikely to support either the macro or micro effectiveness of age discrimination law.

When law and data collide: the methodological challenge of conducting mixed methods research in law

AbstractA mixed methods research methodology – one that integrates both qualitative and quantitative research methods – theoretically offers substantial advantages for empirical legal scholarship. I argue that mixed methods represent both a challenge to socio‐legal scholarship and an invitation to re‐evaluate our approach to socio‐legal research; indeed, mixed methods are well aligned with the inclusive and eclectic nature of the field. At present, though, these opportunities appear underutilized. This article considers how socio‐legal scholarship might advance mixed methods methodology through a renewed focus on qualitative methods, improved dialogue between methods, and an emphasis on the practical ‘messiness’ of quantitative data. Drawing on an empirical mixed methods study of the enforcement of age discrimination law, I illustrate how legal data pose their own challenges to the methodologies of quantitatively‐oriented mixed methods researchers.

Do Stronger Employment Discrimination Protections Decrease Reliance on Social Security Disability Insurance? Evidence from the U.S. Social Security Reforms.

The United States Social Security Amendments of 1983 increased the full retirement age and penalties for retiring before that age. This increased Social Security Disability Insurance (SSDI) applications by making SSDI relatively more generous. We explore if state disability and age discrimination laws moderated these spillovers, using variation whereby many state laws are broader or stronger than federal law. We estimate the effects of these laws on SSDI applications and receipt using a difference-in-differences approach. We find that a broader definition of disability, where only a medically diagnosed condition is required to be covered under state law, along with being able to sue for more damages under state disability discrimination law, are both associated with a significant reduction in induced SSDI applications and receipts. We also find some evidence that some features of state disability discrimination laws are also associated with increased employment, especially for women. While we find some positive association between age discrimination laws and employment effects, we do not find any moderating effect of age discrimination laws on SSDI.

Age Discrimination and Perceived Work Ability: The Mediating Effect of Self-Efficacy

As the number of older workers in the U.S. workforce increases, perceived work ability, which indicates a worker’s capacity to perform job-related tasks or to remain employed, becomes increasingly important. However, age discrimination may undermine the ability of older adults to remain active in the workplace as it poses a significant barrier to their work ability. The purpose of this study was to examine how age discrimination affects perceived work ability among older workers. We also evaluated the role of self-efficacy as a potential mediator between age discrimination and perceived work ability. Self-efficacy can contribute to older adults’ productive aging since it helps them view age-related situations more positively. Using 2,011 respondents (aged 50+) data from the 2018 Health and Retirement Study, structural equation modeling analysis was conducted. Our findings indicated that age discrimination had a direct negative effect on perceived work ability (B = -.230, p < .001). Older workers who experienced more age discrimination were more likely to have low levels of perceived work ability. The indirect effect of self-efficacy (B = -.177; 95% CI = -.240, -.135) was significant. Older workers who experienced more age discrimination were more likely to have low levels of self-efficacy, and this relationship led to lower levels of perceived work ability. These results suggest that greater efforts are required to reduce age discrimination and its negative consequence on perceived work ability and self-efficacy among older workers. Furthermore, age discrimination laws should be more explicitly enforced in the policy direction for older workers.

Age Discrimination and Perceived Work Ability: The Mediating Effect of Self-Efficacy

COVID-19 pandemic has caused a severely detrimental effect on the physical, psychological, and functional well-being of older adults by forcing them to limit their social activities. This study investigates the amount and intensity of daily physical activity (PA) in older adults, living under the social distancing guidelines during COVID-19 pandemic. In this cross-sectional study, 124 community-dwelling older adults (Age:60–96 years, mean:75±7.14) were recruited via word-of–mouth and key person approach between March 2021-August 2021. Participants completed an online survey on COVID-19 questionnaires and wore an ActiGraph GT9X accelerometer on their non-dominant wrist for consecutive 7 days in free-living conditions. Euclidean Norm Minus One cut-points were used to estimate the total time spent in sedentary behavior (SB), light PA (LPA) and moderate-to-vigorous PA (MVPA). Results showed that, 7% had COVID-positive, 55% perceived moderate severity of COVID in their area, 31% reported fear of COVID, and 14.5% were afraid of losing their life to COVID. On average, participants obtained 12.43±2.1 hours/day of SB, 3.47±1.05 hours/day of LPA and 42.71±29.71 minutes/day of MVPA. MVPA minutes/day was significantly higher (P = 0.006) in participants aged 60-85 years than those aged 85+ years (45.38 minutes/day vs 14.25 minutes/day). When age-adjusted data was compared to pre-COVID-19 studies, we found COVID-19 pandemic had negatively impacted the physical activity level in older adults (29.33% decrease in MVPA and 39.2% increase in SB). These findings can be useful in developing guidelines and/or interventions to promote physical activity and healthy aging among older adults, particularly those in social isolation.

Efficient Ethical Principles for Making Fatal Choices

Resource allocations of all kinds inevitably encounter financial constraints, making it infeasible to make financially unbounded commitments. Such resource constraints arise in almost all health and safety risk contexts, which has led to a regulatory oversight process to ascertain whether the expected benefits of major regulations outweigh the costs. The economic approach to monetizing health and safety risks is well-established and is based on the value of a statistical life (VSL). Government agencies use these values reflecting attitudes toward small changes in risk to monetize the largest benefit component of regulations—that dealing with mortality risks. This procedure consequently bases the benefit value on the individual’s own rate of tradeoff between risk and money and in effect creates a quasi-market approach to public policy assessment. Whereas tort liability awards are personalized to reflect the particular circumstances of the case, government policies generally rely on average valuations of mortality risk across broad worker groups. The COVID-19 pandemic has highlighted the potential role of resource constraints in the distribution of medical resources, particularly with respect to the provision of ventilators. The age-based allocation of treatment advocated by some medical ethicists violates age discrimination laws, is based on their own ethical judgments, and is divorced from consideration of private willingness-to-pay values or other possible economic efficiency criteria. A more constructive approach than the lifeboat and triage scenarios that are often discussed by medical ethicists is to consider ex ante how people would choose to provide for treatments when facing a prospective risk, making the task equivalent to that of valuing and saving statistical lives. Continued high valuations of risk reductions even by those who are old provides a rationale for more protective practices and more forward-thinking medical decisions than those advocated by some bioethicists.

Why Retirement and Age Discrimination Policies Need to Consider the Intersectional Experiences of Older Women

We summarize how older women face intersectional experiences that affect their retirement security. These include differential trends in aging, life expectancy, labor supply, work history, retirement savings, and poverty at old age. We also highlight research showing that older women experience significantly more age discrimination than older men. affecting the ability for older women to improve their retirement security by working longer. We demonstrate through examples that these differential trends and intersectional experiences of older women have important policy implications. We provide examples of how Social Security policies, such as increases in the full benefit retirement age and changes to the retirement earnings test, have differential effects on older women. We also discuss how age and gender employment discrimination law fails to protect older women from intersectional sex-plus-age discrimination. We conclude by urging policymakers to consider how older women experience different challenges and how policy should consider their unique experiences.

Why Retirement, Social Security, and Age Discrimination Policies Need to Consider the Intersectional Experiences of Older Women

We provide an overview of research that indicates that older women face unique challenges and opportunities with respect to work, retirement, Social Security, and age discrimination law. We present estimates of poverty by age and sex, showing that poverty increases with age for women due to older women often outliving their spouses and becoming widowed. We discuss research that shows that women benefit more than men from working longer. We then note that older women face intersectional discrimination that can unfortunately be a barrier to older women working longer. We detail how older women often “fall between the cracks” of the Age Discrimination in Employment Act and Title VII of the Civil Rights Act and are thus not well protected against this intersectional discrimination. As a final example of how women face different circumstances, we summarize research on how older women were differentially negatively impacted by the elimination of Social Security’s Retirement Earnings.

Why Retirement, Social Security, and Age Discrimination Policies Need to Consider the Intersectional Experiences of Older Women

We provide an overview of research that indicates that older women face unique challenges and opportunities with respect to work, retirement, Social Security, and age discrimination law. We present estimates of poverty by age and sex, showing that poverty increases with age for women due to older women often outliving their spouses and becoming widowed. We discuss research that shows that women benefit more than men from working longer. We then note that older women face intersectional discrimination that can unfortunately be a barrier to older women working longer. We detail how older women often “fall between the cracks” of the Age Discrimination in Employment Act and Title VII of the Civil Rights Act and are thus not well protected against this intersectional discrimination. As a final example of how women face different circumstances, we summarize research on how older women were differentially negatively impacted by the elimination of Social Security’s Retirement Earnings.

Falling Between the Cracks: Discrimination Laws and Older Women

AbstractTheories and evidence suggest that older women may experience unique discrimination for being both old and female in the workplace. To provide a remedy for this type of discrimination — known as intersectional discrimination — legal scholars argue that age and sex discrimination laws must be used jointly and acknowledge intersectional discrimination (age‐plus‐sex or sex‐plus‐age discrimination) as a separate cause of action. Nonetheless, in general, courts have declined to do so even though older women are protected under both age and sex discrimination laws. This raises a concern that age discrimination laws may be ineffective, or less effective in protecting older women. I test this implication by estimating the differential effect of age discrimination laws on labor market outcomes between older women and older men. My findings show that age discrimination laws did far less to improve labor market outcomes for older women than for older men. These results may explain the persistent findings of discrimination against older women in the existing literature and support the legal scholars' argument that older women's intersectional discrimination must be recognized as a separate cause of action.

Extending Working Life for Older Workers: Age Discrimination Law, Policy and Practice by Alysia Blackham. Hart Publishing, Oxford, 2016, ISBN: 978 1 50990 576 8, Kindle Edition £38.28, £28.99, paperback

Extending Working Life for Older Workers: Age Discrimination Law, Policy and Practice by Alysia Blackham. Hart Publishing, Oxford, 2016, ISBN: 978 1 50990 576 8, Kindle Edition £38.28, £28.99, paperback

Do State Laws Protecting Older Workers from Discrimination Reduce Age Discrimination in Hiring? Evidence from a Field Experiment.

We conduct a resume field experiment in all U.S. states to study how state laws protecting older workers from age discrimination affect age discrimination in hiring for retail sales jobs. We relate the difference in callback rates between old and young applicants to state variation in age and disability discrimination laws. These laws could boost hiring of older applicants, although they could have the unintended consequence of deterring hiring if they increase termination costs. In our preferred estimates that are weighted to be representative of the workforce, we find evidence that there is less discrimination against older men and women in states where age discrimination law allows larger damages, and more limited evidence that there is lower discrimination against older women in states where disability discrimination law allows larger damages. Our clearest result is that these laws do not have the unintended consequence of lowering callbacks for older workers.

Ageism: A Powerful Nemesis for Effective Workplace Discrimination Law

Ageism is a powerful force in American life, and it includes not only biased actions directed against older people but also a wide range of harmful attitudes and stereotypes. Ironically, ageism even limits what law and legal institutions might accomplish in countering the growing problem of age discrimination in the workplace. This article underscores the weaknesses of the Age Discrimination in Employment Act (ADEA), the nation’s most important statute regarding age discrimination and also the appellate case law interpreting that statue. The article then critiques the dismissal by the Equal Employment Opportunity Commission (EEOC) of the great majority of employees’ claims that they have suffered age discrimination. Overall, the article argues that legislators, the U.S. Supreme Court, administrative law judges, and Americans in general must fully appreciate the subtle, complex, and pervasive workings of ageism in order to successfully shape and use age discrimination law to reduce the harm being done to older employees.

Falling Between the Cracks: Discrimination Laws and Older Women

Theories and evidence suggest that older women may experience unique discrimination for being both old and female in the workplace. To provide remedy for this type of discrimination – known as intersectional discrimination – legal scholars argue that age and sex discrimination laws must be used jointly and acknowledge intersectional discrimination (age-plus-sex or sex-plus-age discrimination) as a separate cause of action. Nonetheless, in general, courts have declined to do so even though older women are protected under both age and sex discrimination laws. This raises a concern that age discrimination laws may be ineffective, or less effective in protecting older women. I test this implication by estimating the differential effect of age discrimination laws on labor market outcomes between older women and older men. My findings show that age discrimination laws did far less to improve labor market outcomes for older women than for older men. This may explain one reason for persistent discrimination against older women found in existing literature and supports the legal scholars’ argument that older women’s intersectional discrimination must be recognized as a separate cause of action.

Young Workers and Age Discrimination: Tensions and Conflicts

Abstract Young workers occupy a particularly vulnerable position in the contemporary labour market. While this may partly be attributable to structural trends, it is also related to age discrimination, which is embedded in labour law and organisational practices. Age discrimination against younger workers raises many of the same tensions as age discrimination against older workers. This article therefore calls for a reconsideration of how we frame and conceive age discrimination law.

Limited Legal Recourse for Older Women's Intersectional Discrimination Under the Age Discrimination in Employment Act

Older women compose a large share of labor force in the U.S. There are two federal statutes that can provide protection for older women against employers’ discriminatory behavior: the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act (Title VII). Theories and empirical evidence suggest that older women are more discriminated against for being old and female, but there is a concerning policy implication that current legislation does not provide adequate protection for older women. The main reason for this concern is that older women’s intersectional discrimination invokes age-plus-sex or sex-plus-age cause of action. However, the courts do not recognize this cause of action under the ADEA and they have mixed views on this issue under Title VII. This article discusses evidence of older women’s intersectional discrimination and the importance of recognizing this intersectionality in proof structure. It also reviews case laws and the effectiveness of the age discrimination laws on older women’s labor market outcomes. The findings indicate that the ADEA does not provide equal employment opportunities for older women. Older women’s legal recourse for their unique intersectional discrimination for being old and female is constrained under the ADEA and Title VII strictly due to legislative peculiarities in statutes intended to solve this exact problem.

Do State Laws Protecting Older Workers from Discrimination Laws Reduce Age Discrimination in Hiring? Experimental (and Nonexperimental) Evidence

We provide evidence from a field experiment — a correspondence study — on age discrimination in hiring for retail sales jobs. We collect experimental data in all 50 states and then relate measured age discrimination — the difference in callback rates between old and young applicants — to variation across states in antidiscrimination laws offering protections to older workers that are stronger than the federal age and disability discrimination laws. We do a similar analysis for nonexperimental data on differences across states in hiring rates of older versus younger workers. The experimental evidence points consistently to evidence of hiring discrimination against older men and more so against older women. However, the evidence on the relationship between hiring discrimination against older workers and state variation in age and disability discrimination laws is not so clear; at a minimum, there is not a compelling case that stronger state protections reduce hiring discrimination against older workers. In contrast, the non-experimental evidence suggests that stronger disability discrimination protections increase the relative hiring of older workers.