Cain, Leonard D.

English

Chicago-Kent College of Law

Chicago-Kent Law ReviewVolume 57Issue 4 National Conference on Constitutional andLegal Issues Relating to Age Discrimination and theAge Discrimination ActArticle 4October 1981Age Distinctions and Their Social Functions: ACritique of the Age Discrimination Act of 1975Leonard D. CainFollow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreviewPart of the Law CommonsThis Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusionin Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, pleasecontact dginsberg@kentlaw.iit.edu.Recommended CitationLeonard D. Cain, Age Distinctions and Their Social Functions: A Critique of the Age Discrimination Act of 1975, 57 Chi.-Kent L. Rev. 827(1981).Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol57/iss4/4AGE DISTINCTIONS AND THEIR SOCIAL FUNCTIONS:A CRITIQUE OF THE AGE DISCRIMINATIONACT OF 1975LEONARD D CAIN*In 1977, the United States Commission on Civil Rights issued TheAge Discrimination Study,' a report by a special committee chargedwith translating the Age Discrimination Act of 19752 into an adminis-trable set of rules and regulations.3 Analyzing a draft of the report atthat time, this author noted serious problems with the committee's pro-posals. Read simply, the report was attractive; its recommendationswere to be cheered as progressive; and its methodology appeared to besound, even scientific. But read intently, and in theoretical context, thesame words became threatening; the report's recommendations ap-proached absurdity; and its methodology seemed farcical.The proposals would have divested society of age status differen-tials. The demanded quota system would have produced more discrim-ination than the drafters could have imagined. Title VII, OAA, Mealson Wheels, and other programs would have been allocated by quotas.If, for example, the watchdogs found that a higher percentage of thoseover 75 than those 65-69 were served meals at home, then meals wouldhave been denied to some over 75 and some in the 65-69 age groupmight have been advised to stay at home for a delivered lunch in orderto bring up the percentages.The report showed no grasp of cohort effects. For example, theVietnam War may well have produced severe mental health strainsupon the young. But, according to the report, it appeared that mentalhealth services would have to be withdrawn from the young and re-routed to older persons, regardless of the need or demand for services.Another fundamental flaw in the report was that it forced a sharpeither/or approach to law. That is, it appeared that if Congress speci-fied age discrimination, say, for Medicare, then absolute discrimination* Professor of Sociology and Urban Studies, Portland State University Institute on Aging,Portland, Oregon; B.A., M.A., Texas Christian University; Ph.D., University of Texas, Austin.1. UNITED STATES COMM'N ON CIVIL RIGHTS, THE AGE DISCRIMINATION STUDY (PART I)(1977).2. 42 U.S.C. §§ 6101-6107 (1976 & Supp. III 1979).3. The Age Discrimination Act of 1975 regulations are codified at 45 C.F.R. §§ 90.1-90.62(1980).CHICAGO KENT LW REVIEWwas to be implemented; if Congress, in its wisdom, funded a programwithout legitimizing age discrimination, then absolute quotas wouldprevail. Becoming enslaved by a demographer's computer printouthardly seemed to be progress. To deny, as this report seemed to, therelevance of both age and cohort differences through the rigid applica-tion of a formula is to promote both injustice and inefficiency.Although the final regulations implementing the Age Discrimina-tion Act of 1975 have since been issued by the United States Depart-ment of Health and Human Services, this author's disquiet persists.Evidence from history, from anthropology, and from numerous socio-logical and descriptive observations makes it clear that a functionalprerequisite for every society is the confrontation of the facts of agingof its members and age differentials among its members, and the insti-tutionalizing of means to accommodate those facts. Children andadults have been given different assignments, different rights, and dif-ferent privileges.In commenting on the functions of age distinctions in the contextof the legal system, there are three major issues which must be ad-dressed. The first issue is that of age status termini. When does lifebegin? When does it end? When does infancy end and adulthood be-gin? These simple questions are complicated by the fact that an indi-vidual may not move into a new age status all at one time. This authorhas called this phenomenon age status asynchronization.4 Possibly themost publicized example of this phenomenon is the "old enough tofight, old enough to vote" campaign slogan of a generation ago.This issue remains an important and timely one, as any number ofexamples will show. For instance, a congressional committee recentlyconducted hearings on a proposed constitutional amendment whichwould declare that life, with all the protections bestowed by law uponthe living, begins at the time of conception. In recent years the UnitedStates Supreme Court has adopted the concept of trimesters duringpregnancy to distinguish legalized abortion from murder.5 Severalyears ago, a 15-year-old youth was declared to have the same criminaldue process rights as an adult citizen.6 But issues of responsibilities toparallel the rights of adults remain unclarified.One of the thorniest age termini problems of the 1980s relates tothe timing of old age. With the abolition or postponement of4. Cain, Life Course and Social Structure, in HANDBOOK OF MODERN SOCIOLOGY (R. Farised. 1964).5. See e.g., Roe v. Wade, 410 U.S. 113 (1973).6. In re Gault, 387 U.S. 1 (1976).CRITIQUE OF THE ADAmandatory retirement, an older worker is protected as an adult underthe law. Yet, as under Medicare, older persons are provided with pro-tections and resources not available to other adults.The second issue relates to age determination. There are at leastthree widely recognized definitions of age--chronological, functional,and social. The use of chronological age to determine status differenti-ation between children and adults can be traced to antiquity. In thepast few decades, however, chronological age has also been used to dis-tinguish between adulthood and old age. The legal terminus for adult-hood has been established, and "old age" has become a statisticalcategory, both through use of chronological age. Yet many studieshave revealed vast variations in rates of aging, retention of skills, abil-ity to learn and adapt in later years, and in retention of stamina in oldage. All these are measures of functional age. Thus, at the same timethat chronological age has increasingly become a determinant for as-signment to the old age status, researchers confirm its inadequacy as anappropriate method for determining old age. The postponing ofmandatory retirement is an example of how the conjoining of chrono-logical age and functional age creates problems for policymakers.With regard to social age, an example of its use is seniority rightsfor workers. In recent years this concept has been undergoing varioustests in the courts, especially by those who advocate affirmative actionstrategies for minority groups.A fourth definition of age, less widely known, but perhaps mostimportant, is that of counting backward from projected death ratherthan counting forward from birth (chronological age):[Tihe further an individual moves from the year of his birth, the lesssignificant is that fact for the purposes of gauging functional capac-ity. A major breakthrough is likely to come as indicators of thelength of time until death become perfected. We know a bit aboutthe significance of longevity of parents; we know that cigarette smok-ing shortens life; we predict how long a cancer patient is likely tolive. The practice of retiring everyone at an age counting from birthresults in some workers receiving only a few months return frommany years of contribution to pension funds; others will receive pay-ments for decades. If age could be counted backward from death,rather than forward from birth, more equitable opportunity to re-ceive return on pension investments could be accomplished, housingand health service planning could be improved, and a larger percent-age of the elderly could have the option of a few years of leisure atthe end of their lives.77. Cain, Aging and the Law, in HANDBOOK OF AGING AND THE SOCIAL SCIENCES (1976).CHICAGO KENT LAW REVIEWThe concept has also been suggested by Ryder, who wrote:We measure age in terms of the number of years elapsed sincebirth. This seems to be a useful, meaningful index of the stages ofdevelopment from birth to maturity. Beyond maturity, however,such an index becomes progressively less useful. . . . To the extentthat our concern with age is what it signifies about the degree of dete-rioration and dependence, it would seem sensible to consider themeasurement of age not in terms of years elapsed since birth (chron-ological age) but rather in terms of the number of years remaininguntil death.* * 'Such a suggestion is inapplicable in the individualcase. . . . We propose that some arbitrary length of time, such as 10years, be selected and that we determine at what age the expectationof life is 10 years, that age to be considered the point of entry into oldage.8Ironically, what Ryder says is "inapplicable in the individual case"is precisely what the law is developing. Thus, the court reasoned inWeeks v. Alonzo Cothron, Inc. :9Decedent was age 50 at the time of death in August, 1968 ...His life expectancy under standard tables was 23 years. Plaintiff'sexpert computed the future value of decedent's earnings on an expec-tancy of his working 15 years to age 65, assuming that he was in goodphysical condition and would be able to perform heavy manual workuntil age 65. . . . The trial court concluded:In fact, there is a very serious question as to whether or not hewould have lived to age 65 with his heart condition and drinkingproblem. The greater weight of the credible evidence indicates,and I so find, that the deceased would not have worked past age60, or a total of ten years, if, in fact, he lived that long from thedate of his death ...Bearing in mind decedent's family history, his medical history, andthe type of work he did, we are unable to say that the trial court erredin concluding that his work expectancy would not exceed 10 years.1 0The concept of "counting backward" is yet to be systematicallydeveloped in jurisprudence; it is yet to be systematically utilized in leg-islation; and it is yet to be identified and adopted in administration.However, the concept is clearly present in policy recommendations.For example, a policy change under consideration at present is the ageof eligibility for Social Security benefits. A report recently released bythe President's Commission on Pension Policy cautiously approachedthe "counting backward" issue:The Commission believes that the age of normal retirement8. Ryder, Notes on Stationary Populations, 41 POPULATION INDEX 3, 16 (1975).9. 493 F.2d 538 (5th Cir. 1975).10. Id at 543-44.CRITIQUE OF THE ADAshould change as average life expectancy in the population changes,rather than being set at an age chosen arbitrarily. However it ap-pears that, over time, implementing a formula to achieve such anoutcome may be impracticable. An increase to age 68, as suggestedby many groups, reflects increases in life expectancy since the begin-ning of social security and thus reflects changes that have alreadyoccurred in the proportion of adult life that is being spent in retire-ment. . . . Therefore, because of the need to plan for the future re-tirement age, that age could be reevaluated in the future as lifeexpectancies change. PIt is likely that "counting backward" will become one of the morecontroversial and vital issues in aging and the law during the final de-cades of this century.The third issue may be identified as inter-status equal-ity/inequality versus inter-status equity/inequity. Specifically, how isthe "equal protection of the laws" to be applied to the several stages ofthe life course? It can be argued that current national policy centersupon providing justice by accepting the elderly as unequals and by en-acting laws which are designed to overcome the negative consequencesof that inequality. Thus, a separate legal status for the elderly takesform.12This issue is of prime concern for both theoretical and humanereasons. Justice requires consideration of the equity rather than theequality issue. In recent years the gerontological movement especiallyhas become ensnared by advocating both equality and equity simulta-neously. The prime example is the move to abolish mandatory retire-ment practices and thus extend adult rights to those who have beenidentified in law as old, when at the same time there are continuingmoves to expand the special rights of those very same people on thegrounds that they are old and thereby different from adults in theirneeds and in their rights to have those needs met.CONCLUSIONBecause of these and other complicated issues, Congress was ill-informed when it enacted the Age Discrimination Act of 1975. A myr-iad of problems have already flowed, and many more are likely to flow,from this poorly conceived law.The Civil Rights Commission report was beset with the inade-quacy of a narrow definition of equality, rather than a more appropri-11. PRESIDENT'S COMMISSION ON PENSION POLICY, AN INTERIM REPORT 47 (1980).12. See Cain, Political Factors in the Emerging Legal Status of the Elderly, 415 ANNALS OFTHE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCES 70 (1974).CHICAGO KENT LAW REVIEWate concern for equity among age categories. The current regulationsissued by the Department of Health and Human Services to implementthe Act continue to be plagued by this inadequacy. 13Those who pressed most strongly for the Act assumed that itsthrust would be exclusively, or at least primarily, directed toward pro-tection of the elderly; but the implementation of the Act is, instead,properly directed toward all age categories. Thus, special privileges arelikely to be exposed, and the justice sought for the elderly through theprinciple of equity may be in peril.Social scientists, practitioners, policymakers, and consumers eachhave a responsibility to examine the Act and the implications inherentin its enactment. Social scientists need to explore the concepts relevantto age status differentials. Practitioners need to take to heart the dictatethat they may be unwittingly adding to age discrimination. Policymak-ers need to delay enforcement of the current Act until fuller informa-tion is available. Elderly consumers need to question the real costs andbenefits which will accrue to them under the law. What the Age Dis-crimination Act needs is a thorough testing of its premises and its trans-lation in the light of both descriptive evidence of age status systems andlife course theory. Either an outright rescinding of the ill-fated law, ordrastic amendment, will surely follow.13. 45 C.F.R. §§ 90.1-90.62 (1980).

Age Distinctions and Their Social Functions: A Critique of the Age Discrimination Act of 1975

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Age Distinctions and Their Social Functions: A Critique of the Age Discrimination Act of 1975

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