From the Washington Post: A restaurant wanting a ‘grown and sexy’ vibe bans diners under 30

This is age discrimination. Is it legal? Can it be successfully challenged? How? 

- Click here for the article. 

When Marvin Pate and his wife opened Bliss, their Caribbean restaurant outside St. Louis, they were aiming for an upscale, luxe vibe. They put jollof rice and tropical cocktails on the menu, offered hookahs for patrons to enjoy — and they banned diners under the age of 30.

Since opening its doors in May, the restaurant has operated with an unusual age restriction, allowing in only women at least 30 and men at least 35, rules that the owners have been defending as necessary to maintain the kind of “grown and sexy” atmosphere they’re aiming for. “This policy is in place to ensure a mature, sophisticated, and safe dining environment for everyone,” the restaurant said in a Facebook post.

The age restriction has polarized customers, but Pate and his team have defended them as needed to keep out a rowdy younger crowd. “It’s just something for the older people to come do and have a happy hour, come get some good food and not have to worry about some of the young folks who bring some of that drama,” assistant manager Erica Rhodes told local news outlet KSDK News.
Happy hours are billed as a civilized experience: “This is strictly for the grown and sexy, so we’re keeping it classy — ladies 30 and up, fellas 35 and up,” Bliss posted on Facebook.

. . . Johnson seconded that: “We are standing on this age restriction. It’s a brand and vibe we are trying to protect,” he said.

Legally, restaurants have the right to impose age limits because age is not a protected class in that context. Controversies around age restrictions usually have cropped up when restaurants ban children. Last year, Nettie’s House of Spaghetti in New Jersey, drew both rebuke and praise when it banned kids under 10, citing the noise and “crazy messes” they brought.

It’s far less common for such rules to target adults. But there are exceptions: In San Antonio, Horizons & More bills itself as a 30-and-up destination “for the grown & mature.” And in New York, cocktail bar The Auction House imposes a 25-and-up policy on Fridays and Saturdays.

Last year, two TikTokers shared a tale of being turned away from Melody’s Bar & Grill in Los Angeles because they weren’t old enough for the establishment’s 30-plus night. One response to the video seemed to come from someone who appreciated the idea of a 20-something-free zone: “I know it hurts right now, but when you are 30 you’ll understand.”

For more: 

- Protected Class. 

- Major Life Activity.

- Youth Age Discrimination.

- National Youth Rights Association.

From Esquire: Two U.S. States Might Lower the Drinking Age to 18

Who says the future's not bright?

- Click here for the story.

Voters in California could soon decide whether to lower the state's drinking age from 21, while lawmakers in Minnesota will consider bills making it legal for 18, 19, and 20-year-olds to drink in bars and restaurants.

A 1984 law established the national drinking as 21, with the federal government telling states it would withhold highway funding if they didn't abide. But Phyllis Kahn, a longtime state rep in Minnesota, believes a provision in Obamacare now makes states immune from that threat, according to the Pioneer Press, a Minnesota newspaper.

This inspired Kahn to introduce two bills addressing the legal age: One would lower the drinking age in bars and restaurants to 18; the other would allow people under 21 to drink in bars and restaurants if they are with a parent, guardian, or spouse of legal age. (Kahn prefers the first bill, the Pioneer Press said.)

The idea is to adopt a European mindset, the Pioneer Press reported, teaching young people how to drink responsibility in a social setting. They wouldn't be able to buy booze in liquor stores until age 21.

From ScotusBlog: Court denies gun rights cases (UPDATED)

ScotusBlog's Lyle Dennison tries to explain why the Supreme Court decided to not hear the Second Amendment cases we've been discussing in class - the ones that were intended to get the court to expand the right to keep and bear arms for self defense outside the home.

Remember that two of these cases involved expanding access to guns to 18, 19 and 20 year olds. The court apparently see no reason to even consider the argument. I'm not sure whether this should be considered a statement about attitudes towards the Second Amendment or the Fourteenth Amendment's applicability to age discrimination. Clearly the young can still be discriminated against when it comes to gun purchases - as it can with alcohol purchases.

- Click here for the article.

The Supreme Court refused on Monday, as it has done repeatedly in recent years, to settle the issue of whether Second Amendment rights to have a gun extend beyond the home. The Court, without comment, denied three new petitions — two filed by the National Rifle Association — seeking clarification on the scope of an individual’s right to have a gun for personal self-defense. In other orders, the Court did not accept any new cases for review, although it did hold over a number of cases it had examined for potential review.

Since the Court first ruled nearly six years ago that the Second Amendment protects a personal right to have a gun, it has issued only one further ruling — expanding that right so that it applies nationwide, to state and local gun control laws, as well as to federal laws. But, without exception, the Justices have turned aside every potential sequel, essentially leaving it to lower courts to continue to sort out variations on the right.
One thing seemed clear from the denial of review of two of the new cases, the NRA’s challenges: the Court is not, as yet, ready to stop lower courts from creating an entirely new group in society with less than full gun rights. In those cases, it was youths aged eighteen to twenty years old.

One petition — NRA v. Bureau of Alcohol, Tobacco and Firearms — was a challenge to the part of a 1968 law barring licensed gun dealers from selling handguns to those in that age bracket. The other case — NRA v. McCraw — was a challenge to a series of Texas laws that generally barred individuals in that age bracket from qualifying for a license to carry a handgun in public, outside the home.

In separate rulings in those cases, the U.S. Court of Appeals for the Fifth Circuit raised doubts about whether individuals in that age group are entitled to any protection under the Second Amendment, on the theory that the Supreme Court had upheld gun rights only for “responsible” individuals.

While the Supreme Court’s denial of review of those petitions was not explained, it cannot be said for sure that it agreed with the lower court’s view, but that view does prevail for the time being.

The third Second Amendment case denied review on Monday was Lane v. Holder, an attempt to get the Court to clarify when gun purchasers have a legal right (“standing,” in a technical sense) to go to court to challenge federal restrictions on gun buying. At issue is a provision of a 1968 law barring all interstate sales of guns except through federally licensed gun dealers, and whether purchasers can sue to challenge that limitation.

The New Unemployables

I'll post a few items that try to help explain why the unemployment rate is so high, especially since corporate profits are up, and the stock market returned to record territory once again.

Older workers - those in their 50s and above - "were less likely to lose their jobs during the recession, but those who were laid off are facing far tougher conditions than their younger colleagues. Workers in their fifties are about 20% less likely than workers ages 25 to 34 to become re-employed."

Reports show they are actively seeking work, but find themselves less employable than younger, recent graduates.

Is age discrimination a factor?

Older workers also have the longest bouts of unemployment. The average duration of unemployment for workers ages 55 to 64 was 11 months as recently as January, according to the Labor Department. That's three months longer than the average for 25- to 36-year-olds.
Given these circumstances, many workers can't help but think age discrimination is a factor. AARP's Public Policy Institute surveyed unemployed baby boomers in 2010 and 2011. While 71% blamed their unemployment on the bad economy, almost half also said they believed age discrimination was also at play.
About 23,000 age discrimination complaints were filed with the Equal Employment Opportunity Commission in fiscal 2012, 20% more than in 2007.
Proving discrimination is next to impossible, though, unless it's blatant.
"It's very difficult to prove hiring discrimination, because unless somebody says, 'you're too old for this job,' you don't know why you weren't hired," said Michael Harper, a law professor at Boston University.

Here are two studies that try to get to the bottom of what;s driving this:

- The New Unemployables.
- Age Disparity in Unemployment and Reemployment During the Great Recession and Recovery.

The Supreme Court will hear a case regarding age discrimination

From ScotusBlog:

The Supreme Court agreed on Monday to decide whether state and local government workers may file constitutional claims of age discrimination, instead of pursuing their complaints under the Age Discrimination in Employment Act — an issue on which lower federal courts are split. The case is Madigan v. Levin (12-872). That was one of three cases accepted for review, with oral arguments and decisions in each to be held next Term.

Click here for detail about Madigan v. Levin, here's the fancy desscription of the case:

Issue: Whether the Seventh Circuit erred in holding, in an acknowledged departure from the rule in at least four other circuits, that state and local government employees may avoid the federal Age Discrimination in Employment Act’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.

Click here for background on the Age Discrimination in Employment Act, and click here for the facts of the case as outlined in the circuit court opinion.

From what I can tell, and older white guy - a lawyer - was fired from the Illinois Attorney General's office and replaced with a younger woman. The employer claims that he was let go due to "low productivity, excessive socializing, inferior litigation skills, and poor judgment," but he is claiming age discrimination and apparently wants to pursue the case under the constitution's Equal Protection Clause. It seems that the case is simply about whether he can do so.

Remember when we discussed discrimination under the law in 2305, we mentioned that the hurdle for discriminating on the basis of age is rather low. The defendant seems to want to prove that even that low standard was not met by the state.

From The Texas Tribune: A Boom on Texas Roads

Policymakers in the state are trying to figure out how public policies need to be changed in order to accommodate the huge number of baby boomers that are starting to retire. One area of concern: traffic policies.

What about traffic, and old people?
[State demographer Steve] Murdock sees the number of drivers growing, which makes sense since the overall population will grow. Since the population will be older over all, he projects the number of drivers per 1,000 residents will grow. More adults per 1,000 means more drivers per 1,000.

And the fastest growth of any age group will be the gray-hairs — drivers 65 or older. Depending on the growth model for Texas — what you think migration will do, whether you think the state will be as magnetic as it has been for the last two decades — the over-65 driving population will grow by anywhere from 218 percent to 268 percent between 2005 and 2040. Put another way: A population that numbered about 1.8 million in Texas in 2005 will grow to somewhere between 5.7 million and 6.6 million in 2040.

That group is part of a bigger issue: If the state continues to grow like it has, we will need more roads. “We’re adding lots of bodies to roads that are already congested,” Murdock said.

And lots of them are older bodies. Texas, as with some other states, has a different set of laws for its oldest drivers; after age 85, for instance, they have to get their licenses renewed every 2 years instead of every 6, and everyone who is 79 or older has to do it in person instead of by mail or online.

That might get another look as more drivers get old. The Insurance Institute for Highway Safety says fatal crashes per mile driven “increase noticeably starting at age 70-74.”

The bright spot in the demographics-as-traffic-policy is on the other end, where the most dangerous drivers live. The number of drivers under 25 will have the lowest growth rate on the charts through 2040. Their crash rate per mile is five times the rate of seniors.

One of the examples I like to look at for [potentially] justifiable discrimination is age discrimination regarding drivers licences. the state toys with the idea that older folks ought to take tests again once they hit their 70s. Maybe that idea gets re-introduced.

Two Senators introduce legislation to overturn Supreme Court case

File this under checks and balances as well as civil rights.

The NYT points out that Senators Harkin and Grassley have introduced the Protecting Older Workers Against Discrimination Act which internded to overrule Gross v. FBL Financial Services, Inc. This was a 2008 Supreme Court case which ruled against a man's claim under the Age Discrimination in Employment Act (ADEA) that he had been demoted due to his age. The Supreme Court ruled that those claiming age discrimination must prove by a "preponderance of the evidence" that age was the principle factor leading to the demotion.

The Senators intend to overrule that standard. They state the following about the bill: 

• The Act reverses the Gross decision and restores the law to what it was for decades before the Court rewrote the rule. The Act makes clear that when a victim shows discrimination was a “motivating factor” behind a decision, the burden is properly on the employer to show it complied with the law.

• The Act is modeled on the Civil Rights Act of 1991, which passed the Senate on a bipartisan basis 93-5. Among other things, the Civil Rights Act of 1991 codified the “motivating factor” framework for race, sex, national origin and religion discrimination claims under Title VII of the Civil Rights Act of 1964.• The Act makes clear that this “motivating factor” framework applies to all anti-discrimination and anti-retaliation laws involving race, sex, national origin, religion, age and disability – treating all workers, and all forms of discrimination, equally.

While we've spent time looking at last week's attempt to use the Supreme Court to overturn a law passed by Congress, its worth noting that the reverse can happen as well. Congress can modify legislation to negate the consequences of a Supreme Court decision.

On Age Discrimination in Hiring

From Michael Kinsley in Bloomberg, something for 2301s to consider as we discuss civil rights:

Of all the forms of discrimination that the law forbids -- racial, gender, sexual orientation in some states -- age discrimination is the one that nevertheless goes on most brazenly. Corporate recruiters and human resource departments are carefully trained to talk in code, saying that they’re looking for “fresh thinking” or “energy, dedication and willingness to work long hours.” You know what they really mean. Hiring or promotion to top positions in government and private corporations doesn’t even pay lip service to equal opportunity for people over age 60 or so.

Is this necessarily wrong? The Age Discrimination in Employment Act of 1967 begins with a “finding” of “rising productivity and affluence.” These are different times. In today’s zero-sum world, someone who sits on a tenured chair or other sinecure is denying a place to someone else, probably younger. Was the law ever intended to protect baby boomers in no particular financial distress looking for a suitable capstone to a successful career?

Old People Behind the Wheel

My favorite example of justifiable discrimination. Would legislation demanding that old folks retake drivers exams survive an equal protection challenge?

Age Discrimination: Gross v. FBL Financial Services

Members of Congress are attempting to reverse the results of a Supreme Court ruling on age discrimination. The case is Gross v. FBL Financial Services.

The proposed legislation is a response to the Supreme Court’s June 2009 ruling in Gross v. FBL Financial Services that plaintiffs claiming disparate treatment under the Age Discrimination in Employment Act must show that age was the determining factor in the alleged discrimination, rather than just one of several factors.

“The Gross decision established a far higher standard of proof for age than for other forms of discrimination, without any rationale or justification,” Harkin said. Leahy said the 5-4 decision written by Justice Clarence Thomas was evidence of an “activist Supreme Court.”

Under the proposed legislation, the burden would be on the employer to show it complied with the law once a plaintiff shows age discrimination was a “motivating factor” behind an employment decision.

We will cover this in 2301 when we hit civil rights. and the 14th Amendment's Equal Protection Clause.

Age Discrimination Upheld

The Supreme Court has, by a 5-4 vote, made it more dificult to prove age discrimination. The case is Gross v. FBL Financial Services, Inc (Scotuswiki, docket).

From civil rights.org:

The lawsuit was brought by Jack Gross, a longtime employee of FBL Financial Services, Inc., who was demoted at the age of 54 through what the employer called a restructuring. Gross argued his demotion was the result of his age and filed suit under the Age Discrimination in Employment Act (ADEA) of 1967, which prohibits employment discrimination against workers over the age of 40.

In a broad decision, the Court reversed a longstanding rule used by many federal appellate courts that provided for a two-step process in some age discrimination cases under the ADEA. Previously, the employee had to demonstrate that age was a motivating factor in the employer's decision, which then shifted the burden to the employer to prove that the action was based on grounds other than age. Now, the employee carries the full burden of showing that age was the determining factor in a demotion or layoff by an employer.

The Denver Post editorializes against the decisison and argues that the Age Discrimination in Employment Act needs to be strengthened:

As the workforce gets older, times get tougher and workers need to stay on the job longer to make ends meet, anti-bias protections are increasingly important.

Congress ought to revise federal employment law to ensure older workers have adequate avenues of redress when they are wrongly terminated.

The case also illustrates a point we make in 2301 when we discuss discrimination and the various levels of scrutiny applied to different types of discrimination. Again, from the Post:

The practical impact of the decision will be to create an unfair distinction between age discrimination cases and other types of discrimination cases based on gender, race and ethnicity.

"It reinforces the notion that age discrimination is somehow different and not as bad as other types of discrimination," Thomas Osborne, lawyer for the AARP Foundation, was quoted as saying in The National Law Journal.

The remedy for this situation is for Congress to amend the Age Discrimination in Employment Act so the burden of proof mirrors that in Title VII of the Civil Rights Act, under which other discrimination cases are brought.

The Post's comment concludes by reminding us that the public policy process within the system of separated powers, is never ending. The decision, since it is based on the court's interpretation of statutory language, can be negated by clarifying that statutory language. This means revising the Age Discrimination in Employment Act of 1967:

Support for such a revision is brewing, and we're glad to see that. Senate Judiciary Chairman Patrick Leahy, D-Vt., expressed dismay over the decision. He and others in Congress ought to muster support for an ADEA revision and pass it.

Lengthening lifespans and delayed retirement dates make it clear that our society will be facing new issues involving workers staying on the job longer.

It is patently unfair that older workers should have to shoulder a heavier burden than others in proving workplace discrimination.

Age Discrimination Revisited: How Old is Tool Old to Raise a Grandkid?

We've discussed age discrimination in terms of driving, and suggested that maybe driving tests for older drivers may not be found to violate the equal protection clause, but here's a story regarding a 50ish couple that wishes to raise their grandson even though a judge (who seems to be a jerk in my opinion) thinks they are too old and that the child is better off in foster care. Is this couple being treated unequally?

‘Hi, Pa!” exclaimed 2-year-old Rafael Sierra as he ran toward his step-grandfather’s outstretched arms.

Arnold Del Bosque scooped up the beaming boy while gripping plastic bags stuffed with toys. Arnold’s wife, Yolanda, took their younger grandchild, 1-year-old Luis, into her arms, already laden with a Playskool “Busy Gears” set and two Happy Meals.

It wasn’t Christmas. It was visitation day last Friday at the Child Protective Services office on Chimney Rock.

For Arnold and Yolanda, regaining the right recently to visit the grandchildren they’d raised since infancy was their first win in a painful custody battle.

Last week came another.

Juvenile Court Judge John Phillips, who ordered the boys removed from the Del Bosques’ La Porte home last year after remarking in court that the 50-something grandparents were too old to raise them, recused himself from the case.

But he didn’t go quietly.

...

Old and Deadly

Another story on our age discrimination theme:

Police say they don't know why an elderly driver crashed into the rear of another vehicle Thursday in the Heights, killing two other senior citizens.

Ima Jean Archer, 79, and her uncle, Sam Willard King, 91, died instantly when their car was hit from behind by the speeding driver, Houston police said. Archer's longtime companion, Bobby Lee McBride, 73, remains in critical condition at Ben Taub General Hospital.

Police would not release the name of the 84-year-old woman whose Toyota Corolla crashed into the back of Archer's car on East 20th Street at Heights Boulevard.

At least one witness told accident investigators the woman was speeding before the impact, HPD officer Trey Cox said.

So if elderly driver are required to take regular drivers tests, and it was passed, and was then subject to a constitutional challenge, what standard would the courts use to review the case?

Driver's Tests for the Elderly?

Didn't we talk about this type of thing in class yesterday?

An elderly driver hurtled through barricades into a crowd lined up for a Christmas parade Monday and injured several people, some of them members of a Cub Scout troop, a city official and witnesses said.

Overton City Manager B.J. Potts said that the driver was arrested, but alcohol was not detected.

"It happened very quickly," Potts said. "There's still a lot of questions."