Your Time Will Come

Your Time Will Come: The Law of Age Discrimination and Retirement

Lawrence M. Friedman
Copyright Date: 1984
Published by: Russell Sage Foundation
Pages: 160
https://www.jstor.org/stable/10.7758/9781610442312
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  • Book Info
    Your Time Will Come
    Book Description:

    Age discrimination and its corollary, mandatory retirement, are modern legal issues, barely a generation old. In this concise and readable report, Lawrence Friedman explores the apparently sudden emergence of a field of law that pertains mainly to the elderly and middle-aged.

    Friedman traces the brief but fascinating social, legislative, and judicial history of age discrimination law and of the laws addressing mandatory retirement. Both histories contain paradoxes and contradictions; both seem simultaneously to make an issue of "age" and to demand a kind of age neutrality, reflecting broad recent changes in American culture. Both histories are intricately bound up with other legal issues-age discrimination with race and sex discrimination; mandatory retirement with the development of pension plans and other social insurance systems. Friedman speculates on the impact of these new laws, illuminating through his analysis the complex phenomenon of "legalization," or the penetration of legal norms into ever more areas of life.

    Finally, Friedman offers a provocative conclusion in which he suggests that laws on age discrimination and retirement-laws that appear to have a less extensive social background than one would expect-may in fact be "stand-in" laws for vague but powerful social norms not yet recognized in the legal system.

    Your Time Will Comeis the first new volume in a special paperback series entitledSocial Research Perspectives: Occasional Reports on Current Topics. ThesePerspectivesrepresent a revival of the Social Science Frontiers series published by the Foundation from 1969 to 1977 and will again offer short, timely, and accessible reports on various aspects of social science research.

    A Volume in the Russell Sage Foundation's Social Science Perspectives Series

    eISBN: 978-1-61044-231-2
    Subjects: Law, Sociology

Table of Contents

  1. Front Matter
    (pp. [i]-[iv])
  2. Table of Contents
    (pp. [v]-[vi])
  3. Introduction
    (pp. 1-4)

    This is the account of a field of law which is mainly (though not entirely) about problems of old and middle-aged people. The “field” in question is age discrimination and its corollary, the law about mandatory retirement. More generally, it is about what happened in the law as this field emerged out of the primal void, so to speak. It is also about the process of making (and applying) rules.

    Normally, new law begins with a distinctive social problem—air pollution, the crime wave—which exists either in the real world or in people’s heads, or both. Age discrimination has...

  4. Part I Age Discrimination
    • The Historical Background
      (pp. 5-24)

      In 1967, Congress passed the Age Discrimination in Employment Act (ADEA). In this law, the federal government created an important new legal mechanism. Later, in 1975, Congress passed another important law, the Age Discrimination Act (ADA).⁵ Before these two laws, there were federal lawsaboutthe elderly, or which had an impact on them; but no law was concerned with “age discrimination” as such. There were, however, a number of state laws, some as old as the 1950s, or older, which made “age discrimination” illegal.⁶ These laws, it is fair to say, did not make much of a splash at...

    • Doctrine and Reality in Age Discrimination Law
      (pp. 25-34)

      ADEA came to life, perhaps, in a somewhat casual way, but it has turned out to be an important shift in law. It gave power and privilege to middle-aged workers; it helped “legalize” age as a category.

      Age was never, of course, legally irrelevant. Rights to vote, marry, or get elected to Congress all depend on age. Age makes people eligible (or ineligible) for many programs, such as Social Security. These bits and pieces never coalesced into any general principle. But after ADEA, and ADA, there seemed to be a rule, in effect, which made distinctions based on age suspicious...

    • ADEA in Court
      (pp. 35-44)

      One key aspect of the law of age discrimination is the rapid growth of litigation. The law requires conciliation; but if conciliation fails, the agency can take an employer to court. Even more interesting is the growing volume of private litigation, cases in which plaintiff sues as an individual (or group), without agency help.

      Most reported cases—there are hundreds of them—turn on points of procedure. This is not surprising. Reported cases are, in the main, appellate cases. Many of them involve points of administrative law. Actual facts are not good grounds for appeal, either from a lower court...

    • Private Enforcement of ADEA
      (pp. 45-56)

      Legalizationdepends on public consciousness of claims and a willingness to enforce them. In theGoodyearcase, we suggested how formality followed, as a natural consequence, from the way ADEA has been interpreted in court. There is thus a crucial link between litigation and legalization. ADEA createdrights. There is an increasing tendency to use them. Litigation is on the rise, even though the law stresses conciliation, and even though most complaints never get to court. Perhaps some fraction of employers is obstinate and unyielding; or some fraction of employees is fractious and demanding. In any event, court action is...

    • ADEA and ADA Assessed
      (pp. 57-72)

      I have so far discussed some aspects of the evolution of age discrimination law and speculated on social attitudes driving this development. This section will add some comments, by way of general assessment, about the impact and meaning of this novel field of law.

      One place to begin is with an elaborate and trenchant critique by Peter Schuck.117Schuck’s subject was ADA, which has its own special bag of problems (it suffers, for example, from terminal vagueness). But his criticism goes beyond ADA and applies as well to ADEA and its state equivalents.

      ADA, Schuck argues, was fundamentally misconceived. He...

  5. Part II Retirement:: The End of a Road
    • Background: The Road to Roadʹs End
      (pp. 73-90)

      In 1981, the Chicago-Kent Law School, on the near north side of Chicago, sponsored a “National Conference on Constitutional and Legal Issues Relating to Age Discrimination and the Age Discrimination Act.” Scholars “from the field of law and from the social sciences were present.”139They read or listened to papers on the subject and took part in discussions, mostly about ADA, though also about ADEA.

      Many of the scholars expressed doubts about these laws. Some dared to suggest that age discrimination might be, on the whole, a red herring. Others disagreed; they saw a real issue, and a real social...

    • Mandatory Retirement Assessed
      (pp. 91-102)

      Retirement in general and mandatory retirement in particular do not have long histories, as we pointed out. At first blush, the rise of mandatory retirement seems almost paradoxical. American society in the nineteenth century was, for the most part, a society dominated by the young; an immigrant society, a mobile society, a society pushing out its boundaries. Particularly on the frontier, young men held the reins of power. There was nothing unusual about a 30-year-old governor or a state court justice equally young.

      Talcott Parsons has made the point: a “frontier” society tends to be “technically oriented”; it values “technically...

  6. Part III Legalization and Judicialization: Some Summary Words
    (pp. 103-114)

    The development of law about age discrimination and mandatory retirement is a prime example oflegalization. “Law” has been infused into situations where it was absent before. Labor law, in general, has been dramatically legalized since the last century. In the late nineteenth century, there was a burst of legislation on work conditions, job safety, terms of pay, the right to strike, and so on.232This was an age of industrial conflict, and the courts were drawn into the struggle. They took part rather eagerly. The labor injunction is essentially an invention of the late nineteenth century.233The New Deal...

  7. Postscripts
    (pp. 115-120)

    In Part II, it was noted that some states, including California, have abolished mandatory retirement. The California law is relatively new; it may be too soon to know the ultimate impact. But what has happened in the short run?

    To find out, we surveyed a number of employers in northern California. The sample was not random; but we tried to get information from a range of firms and agencies. A questionnaire was sent to 31 personnel departments; when (as usual) answers dribbled in rather slowly, a follow-up letter was sent out. In the end, there were 21 responses, a response...

  8. Acknowledgments
    (pp. 121-122)
  9. Notes
    (pp. 123-149)