Can forbidden grounds be rational grounds? Ask Prof. Chemerinsky

Suppose an enterprise has an 81-year-old executive who’s currently able to perform well, but has had recent health problems and faces a significant actuarial risk of disablement or worse within a few years. Suppose the continued tenure of this executive complicates the enterprise’s future, through sheer uncertainty (since an unforeseen departure crisis might come at just the wrong time) and because certain high-quality potential successors available to step in now might not be available two or three years hence.

Is it somehow illegitimate or invidious even to think through considerations like these, because the absolutely only relevant factor is how well the person can perform the job right now?

If you say, “yes, it’s totally illegitimate and invidious, you should be ashamed of thinking this way” then congratulations: current federal workplace law is on your side. Disabled-rights law makes it legally hazardous for an employer, in the course of pretty much any action — say, career counseling of existing employees — to consider the risk of future recurrence of a disabling condition now in remission. Age-discrimination law makes it unlawful to treat an 81-year-old as lacking any advantage that a 46-year-old might bring to an enterprise with long time horizons — and again, just evidence that an employer has been thinking along these lines is a lawsuit risk whether or not it actually proceeds to send hints to an individual employee about passing on the torch. In the Mad Men era, employers routinely had policies expecting their executives to retire at a certain age; now the law bans such policies, whether the age in question be 65, 75, or 85.

If on the other hand you say, “no, it’s not illegitimate, it’s just common sense to acknowledge factors associated with age and disability as part of life and we all take them into account whether we admit it or not,” then come on over and join the unlikely duo of me and, more importantly, the distinguished Prof. Erwin Chemerinsky, who applies all this logic to the situation of Justice Ruth Bader Ginsburg. Now as it happens, on the particulars of this one case, I don’t go along with Chemerinsky’s conclusion; I find myself more swayed by Prof. Garrett Epps’s rather more gracious argument that Ginsburg has good reason to stay, especially as the intellectual firepower of the Court’s left wing might well take a hit if she leaves.

It’s great to know, though, that Prof. Chemerinsky sees through the flimsy rationale that underlies these sectors of discrimination law. I was afraid he was going to turn out to be some kind of big liberal.


  • EEOC has no trouble with airline pilots having forced retirement age. But then the members of the EEOC, and congress have their butts in the seats piloted by potentially geriatric pilots.

  • Prof. Chemerinsky’s real concern is that if she isn’t replaced now by Obama, she might end up being replaced by a Republican President. After all, she has publicly stated that she wouldn’t take who holds the WH into account when deciding if/when to retire.

  • MattS, the thing that I find most ironic is that it was people like Prof. Chemerinsky who were howling about how if SCOTUS overturned Obamacare it would be completely political and the court should not be political. Of course when they are accusing Republicans of politicizing SCOTUS Chemerinsky’s article and others like it will be forgotten by everyone in the media except for already conservative media, libertarian media and places like this.

  • Does the same logic apply when signing an NFL qb?

  • Isn’t age-based employment discrimination banned precisely because it’s rational?

  • Is “thinking along those lines a lawsuit risk” even if the conclusion, real or proposed, is that we should offer George a nice bonus to retire now? Would that be considered discrimination against other employees who don’t get similar offers?

  • jdgalt — I think the short answer is that the law allows quite a lot of leeway for bribes to retire, otherwise known as buyout offers; a cynical view would be that the law almost has to welcome them because they are a species of settlement, and negotiating settlements is what keeps employment lawyers in business. There are some ways in which mass buyout offers can set off discrimination tripwires, but a competent lawyer should be able to craft something that is lawful and will not give younger workers grounds to object. But a memo saying “we would be better off without Bob because of his age and likely recurrence of illness” would be potentially powerful evidence if instead of a buyout Bob remained in place and the relationship went sour eventuating in a claim of adverse action of some sort.