Employment Protections for Older Workers: Do Disability Discrimination Laws Matter?

1. INTRODUCTION The Age Discrimination in Employment Act (ADEA) was enacted in 1967 with the primary goals "to promote the employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment" (ADEA, 1967: 29 U.S.C. [section] 621 (b)). It is the subject of approximately 16,000 annual charge receipts with the Equal Employment Opportunity Commission (EEOC), as well as substantial court litigation (EEOC, 2001). (1) The limited empirical research on the impacts of the ADEA finds that it has positive effects on the employment of protected workers (Neumark and Stock, 1999; Adams, 2000). However, legal scholars have raised questions about the ability of the ADEA to protect older workers from employment discrimination and posit that some older workers may instead be better protected under the Americans with Disabilities Act (ADA) (Frier, 1993; Posner, 1995). Frier (1993) notes that gaps in coverage of the ADEA based on bona fide occupational qualifications (BFOQs), and exceptions made for factors other than age exempt some older workers from protection under the ADEA (for example, an employer does not violate the ADEA if he discharges an employee on the basis of an age-related disability). These workers may be eligible for protection under disability discrimination laws, however, because some of the characteristics that often accompany age (e.g., frailty, mild cognitive impairment, or failing hearing or vision) may fall under the provisions of disability discrimination legislation that does not include a BFOQ exception but instead applies to any qualified individual with a disability. In this sense, Frier argues, the ADA makes a BFOQ defense under the ADEA more difficult because some age-related employment problems could be solved by reasonable accommodations. [FIGURE 1 OMITTED] Although age in itself is not considered a disability under the ADA, the language of the act clearly acknowledges that disability and age are correlated, noting, "some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older" (ADA, 1990: 42 U.S.C. [section] 12101 (2) (a) (1)). Indeed, as Figure 1 shows, the positive relationship between age and disability status is quite striking, hovering below 10% for those under age 40, but rising fairly dramatically starting around age 45, and affecting one-quarter of the population by age 60 and one-third of the population by age 65. As noted by Posner (1995, p. 339), "The interaction between [the ADA and ADEA] has yet to be explored by the courts .... The ADA may succeed in helping older workers where the ADEA has been ineffective." The interaction between these two types of laws has yet to be explored by empirical researchers as well. Given Frier's argument, whether the protective effect of age discrimination laws is affected when age laws are coupled with disability discrimination laws is of particular interest. In addition, because prohibitions against discrimination in firing and reasonable accommodation requirements in disability discrimination laws raise the cost of employing the disabled, whether the coupling of the laws is associated with net increases in employment or earnings of protected workers is also of interest. The purpose of this article is to investigate (1) whether there are interaction effects between age discrimination and disability discrimination laws in terms of labor market outcomes and (2) whether the coupling of the laws is associated with net employment or earnings changes, relative to age-law protection alone. An investigation of the ADEA and ADA is somewhat problematic, however, because these policies have near-universal coverage for their protected groups, making it difficult to identify a comparison group that can be used to control for changes in relative outcomes that are unrelated to the legislation. …