Clearing the Bench : Using Mandatory Retirement to Promote Gender Parity in the U.S. and the EU Judiciaries

Many European Union (“EU”) countries have been particularly adept at implementing antidiscrimination laws that go beyond merely promoting gender diversity, but also toward obtaining gender parity in some areas. These laws, directives, and policies, along with other factors, have expanded the representation of women in the legal profession generally and specifically in the ranks of professional judge positions, such that women constitute a majority, however slight, of judges throughout the EU. On a parallel track, the EU Council Directive 2000/78/EC prohibits discrimination based on age. It allows member states to fix a minimum age for certain benefits, and maximum ages for recruitment, such as when justified based on the amount of training needed to embark on a profession, as well as compulsory retirement ages. This article is a comparative analysis of the gender demographics of judges in both systems, examining the various rationales for enhancing gender diversity and inclusion. It provides an overview of mandatory retirement policies in the United States, and the EU, and their specific application to judges. The article then examines how to justify mandatory retirement ages for judges, and the role such limits can play in promoting gender parity in the judiciary. The paper concludes with a discussion of the policy implications of using age discrimination to promote gender diversity and inclusion