Increasing Employment for Older Workers with Effective Protections Against Employment Discrimination

Employment discrimination contributes significantly to depressing labor force participation and employment rates of older workers. Actual discrimination reduces employers’ demand for older workers’ labor, while older workers’ perception of workplace and labor market discrimination reduces their willingness to supply their labor, especially given the availability of alternative income sources. Actual and perceived discrimination combine to drive older workers out of employment and the labor market when they would be better off earning wages or salaries that would both support them as they grow older and allow them to improve the adequacy of their retirement savings.Age discrimination persists, in part, because weak antidiscrimination laws, lack of transparency in some mechanisms for enforcing those laws, and low union-density rates make it more difficult for older workers to remedy discrimination and to trust that discrimination will be remedied. This Article proposes four solutions: (1) increase the effectiveness of the Age Discrimination in Employment Act (ADEA) to protect older workers from employment discrimination; (2) prohibit employers from mandating their employees sign contracts with predispute arbitration provisions covering age and disability discrimination claims, effectively barring them from litigating their claims in state and federal courts; (3) require employers to disclose the number and results of their interactive processes with older workers with disabilities about workplace accommodations under the Americans with Disabilities Act (ADA) and Rehabilitation Act § 503; and (4) enact comprehensive labor law reform so that more older workers will be protected against discrimination by collective bargaining agreements and union representation