Rethinking the Constitutionality of Age Discrimination: A Challenge to a Decades-Old Consensus

Abstract:     
The consensus in the legal academy and in the courts is that the window of opportunity for bringing a successful equal protection challenge to age discrimination closed decades ago. This Article challenges that conclusion by showing how current Supreme Court precedent creates an opportunity for certain forms of age discrimination to be found to violate the Fourteenth Amendment’s equal protection guarantees. In doing so, this Article calls into serious question legislation that uses age classifications in ways that undermine older adults’ important rights. For example, it challenges the permissibility of elder abuse legislation that limits the informational and substantive privacy rights of persons once they reach an advanced age. By demonstrating the new viability of a form of legal challenge long presumed to be unproductive, this Article outlines potential legal strategies for those who would challenge age discrimination in the courts. It also warns policymakers that the courts may refuse to tolerate the cavalier use of age-based classifications.

Number of Pages in PDF File: 70

Keywords: Fourteenth Amendment, age discrimination, equal protection, legal theory, legal history, constitutional law, jurisprudence, elder law, elder abuse, health care rationing, civil rights

JEL Classification: J70, J71, J78, K10, K30, K40, K41, K42

Accepted Paper Series