Policy Analysis No. 82

The Age Discrimination in Employment Act: Equal Opportunity or Reverse Discrimination?

By Clint Bolick
February 10, 1987

Executive Summary

For the past two decades, those who would use the coercive power of the state to remold our society and redistribute its wealth have frequently invoked the civil rights laws to attain their ends, with considerable success. By distorting the principle of equal opportunity that inspired such laws, these social engineers have reallocated burdens and benefits on the basis of such immutable factors as race and gender, laying waste along the way to free-market processes and the vital freedoms they protect.

Much attention and energy has been directed—for good reason and with some progress—toward resisting such departures from the principle of equal opportunity as racial quotas and comparable worth. However, little note has been taken of the systematic effort in the courts to transform the federal law prohibiting arbitrary age discrimination into a mandate for preferential treatment for workers over 40. Yet, in terms of both the economy and individual freedom, there are very widespread ramifications of this unheralded transformation from equal opportunity to compulsory favoritism.

The stakes involved are substantial, as illustrated by the Senate Labor and Human Resources Committee’s rejection in April 1986 of Jeffrey I. Zuckerman, President Reagan’s nominee for general counsel of the Equal Employment Opportunity Commission (EEOC). Although Zuckerman was vilified by much of the civil rights establishment for his antiquota views, it was his resistance to an overly expansive interpretation of the Age Discrimination in Employment Act (ADEA)[1] that tipped the balance to produce a highly unusual rejection of a nominee for an executive position on solely ideological grounds.

Zuckerman’s offense was his challenging the prevailing orthodoxy surrounding the ADEA and urging an interpretation consistent with the explicit intent and language of the law. For this offense, his commitment to enforcing the law was called into question. Indeed, no one challenged Zuckerman’s qualifications. As Sen. Paul Simon (D-Ill.) conceded, “There is no question about your ability, … about your integrity. The question is commitment.”[2]

The opposition was spearheaded by a potent coalition that, as expressed in a letter from Rep. Claude Pepper (D-Fla.), objected to the nomination “because of its possible detrimental effect on the continued vigorous enforcement of the Age Discrimination in Employment Act.”[3] Among the organizations opposing Zuckerman because of his views on the ADEA were the American Association of Retired Persons, Gray Panthers, National Education Association, American Nurses’ Association, Older Women’s League, and Leadership Council of Aging Organizations, a 30-group coalition that condemned Zuckerman’s unwillingness “to use all existing legal precedents” and a “hostility toward aggressive enforcement” of the ADEA.[4] Although some groups such as the Anti-Defamation League and the Cuban American National Foundation supported Zuckerman, Sen. Howard M. Metzenbaum (D-Ohio) could charge that “all the senior citizens groups” were opposed and that the nomination had elicited “more opposition than I recollect in connection with almost anybody who has been up for confirmation in a long time.”[5] With Zuckerman’s defeat, a potentially significant obstacle to the age lobby’s political agenda was removed from the scene.

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Clint Bolick is an attorney for the U.S. Department of Justice, Civil Rights Division, Appellate Section. He is working on a book entitled Changing Course: Civil Rights at the Crossroads. The views expressed in this article are solely those of the author; they are not intended, and should not be construed, to reflect the views of the Department of Justice or any other federal agency.