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University of Richmond




Ideally, this symposium marking the three-decade anniversary of the Age Discrimination in Employment Act (ADEA) would present an opportunity to assess how well the ADEA has achieved its plausible goals. However, I recognize that any definitive assessment of the success of a statute like the ADEA, which requires the modification of the behavior of social actors, must depend on the kind of sophisticated empirical study for which I have neither the time, resources or capability. I also recognize that defending my identification of the goals of the ADEA might itself require an entire essay.

Therefore, I will present a more modest project, albeit one that reflects the characteristic hubris of law professors. I will take as given the ultimate goals set for national legislation on age discrimination in employment by the Congressionally directed report that is commonly, viewed as leading to the passage of the ADEA, generally cited as the Wirtz Report after Secretary of Labor W. Willard Wirtz, under whose signature it was issued.' I will then argue that our ability to achieve these ultimate goals through the ADEA, as interpreted and applied by the courts, is sharply limited. Fulfilling the agenda of the Wirtz Report for age discrimination legislation would require a major transformation of the operation of the ADEA, a transformation whose costs our society may not be willing to pay.

After a brief review of the Wirtz Report and the ambitions it set for age discrimination legislation, I will focus on two sets of developments in the judicial interpretation of the ADEA. First, I will consider how the courts have addressed, or rather failed to address, the difficulty in proving whether the agents of an employer have covertly taken age into account in making an employment decision. Second, I will consider the implications of the Supreme Court's decision in Hazen Paper Co. v. Biggins2 for the capacity of the ADEA to fulfill the potential of an age discrimination law to remove the institutional barriers to the employment of older Americans.

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