In California, we have the Fair Employment and Housing Act which, among other things, prohibits employment discrimination on a variety of bases.  The closest federal equivalent is Title VII.  But Title VII doesn’t prohibit age discrimination.  That prohibition comes from the Age Discrimination in Employment Act (ADEA).

Last June,  in Gross v. FBL Financial Services (pdf), the Supreme Court decided (5-4) that because of differences in the wording of Title VII and the ADEA, plaintiffs alleging age discrimination must meet a different standard of proof.  Specifically, they must show that age was the "but-for" cause of the employment decision at issue. 

As reported in today’s New York Times,  Sen. Tom Harkin, D-Iowa; Sen. Patrick Leahy, D-Vt.; and Rep. George Miller, D-Calif. introduced the Protecting Older Workers Against Discrimination Act in reaction to the Gross decision.  According to Representative Miller, “Workplace discrimination based on age is just as wrong as discrimination based on any other irrelevant factor — and it should be treated as such in the court of law."  

The problem with that rationale is that Congress itself has enacted protections for older workers ("older" referring in this context to those of us 40 and over) that aren’t available to other protected categories — most notably the Older Workers Benefits Protection Act. 

Assume a hypothetical employer laid off two people — a 41 year-old well-educated executive and a 39 year-old, mentally disabled, poorly educated, entry-level worker.  By law, a separation agreement presented to the executive would have to (1) advise him to consult an attorney, (2) provide him up to 21 days to consider the agreement before signing, (3) provide him 7 days after signing to revoke the agreement, and (4) be written in language he can understand.  These, and other requirements listed in 29 U.S.C. sec. 626(f), must be met or there’s a presumption that the executive’s agreement to the severance terms was not knowing and voluntary. 

The entry level worker is entitled to none of those protections.  It doesn’t matter what other protected category he’s in.  Only people 40 and over get the benefits of that legislation.

So it doesn’t seem that the issue is that everyone is entitled to the same protections.  Because Congress doesn’t mind when older workers receive greater protection than other workers.  Why then are Senators Leahy and Harkin and Representative Miller (three white males in their 60s) so protective of the rights of older workers?