That not so clear clear language of the statute makes me think of that new children's movie out where the creatures only are seen when they let you see them.

The only real difference between today's argument over age discrimination and tomorrow's over race discrimination is either that age discrimination is A-OK with the Bush administration but race discrimination isn't, or that the government sides with its employees only when it's not the one who roughed them up in the first place.

The second half of this statement is good for the cynic, but the first is not irrational. Race is treated much more carefully than age is the discrimination context. In fact, so is sex, if a bit less carefully. So, maybe the rule here is that when age is at stake, you need a clearer case of discrimination. I'm something of a lib sort, so would probably think it's clear enough, but it's reasonable (if not necessarily right) to differentiate.

This is why it's easier to sue goverment entities (even a usual 'federalist' sort like Rehnquist got on board when family leave was at stake) in various cases for discrimination when race or gender is at stake as compared to age or disability.

-j

PS Talking about older ladies, it still is rather remarkable there is one woman on the U.S. Supreme Court in 2008.

I see your point about differentiating between race and age discrimination. But as you point out this is yet another case where the "conservatives" on this court seem to be ok with prejudicial discrimination existing de facto. This court sure doesn't seem to see its role as protecting the rights of the individual.

Employers have an interest (although not a legitimate one, I think) in casting aside people who are too old, specifically because they're too old. The employer has extracted the best from older employees, and can look forward to declining performance, spottier attendance, higher health insurance costs, etc. When a dairy farmer has a cow that no longer gives milk, the cow goes to the slaughter house. When an employer has an aging employee, the employee can't be sent to the slaughter house, probably to the disappointment of the employer, but she can be shuffled aside into an unpleasant assignment that might make her quit.

No such interest exists in the case of race or gender. Non-white employees can do the same work as white employees. Ditto on the gender issue. This court, ever aware of its obligation to grease the skids for its corporate patrons, has to draw the line somewhere. I expect them to draw a much brighter line between age discrimination vs. racial and gender discrimination.

For a textualist like Scalia, race certainly is different than age. Race is explicitly mentioned in the Constitution, in the 14th and 15th amendment. Age isn't mentioned at all in the context of discrimination.

Doesn't that make the case that the idividual should be more protected by Ageism statutes since free-market capitalism should prevent race/sex discrimination mroe readily than it prevents ageism. In otherwords, we have an obligation to be MORE protective of the elderly than minorities/women because there are no other forces to protect them?

(To be sure, I think that ageism/racism/sexism are all equally bad and none should be treated any more lightly than the others)

Define "too old" please. In high tech (where you can argue 40 is old) they fire the older person bcs they can hire 2 inexperienced people for the same salary. I love when the lack of experienced people bites the company in the ass. There is a limit to what you can learn from books/lectures.

Actually, as to equal protection, the 14A only says "equal protection." It requires more than text to give a special place to race. Now an "originalist" might be able to. A "textualist," a bit harder.

Race is mentioned in the context of voting and even there, the special proviso in the 14A covers more ground on that issue than race ("in any way abridged," with a few exceptions) .. slavery also is abolished as a whole, not just black slavery.

-j

We but too many hair dyes and pay too much for surgery to keep looking young. Too bad we cannot keep doing our job as young as we can try to look. Who can do construction or lifting the same at 70 as they did at 30? Male or female? Race?

So we all try to look young because being old brings a lot of

baggage we cant carry.

The criteria isn't "as well as", but rather "well enough"