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16 Emp. Rts. & Emp. Pol'y J. 13 (2012)
Reforming the Age Discrimination in Employment Act: Proposals and Prospects

handle is hein.journals/emplrght16 and id is 21 raw text is: REFORMING THE AGE DISCRIMINATION IN EMPLOYMENT ACT: PROPOSALS AND PROSPECTS BY MICHAEL C. HARPER* I. INTRODUCTION - THE IMPORTANCE OF AGE DISCRIMINATION.............................13 II. A REFORM AGENDA ....................................22 A. Closing the Title VII Gap.....................22 1. Providing for Compensatory and Punitive Damag- es .......................................22 2. Providing for Rule 23 ADEA Class Actions.............26 3. Providing an Equivalent Disparate Impact Cause of Action ............................ .....30 4. Providing an Equivalent Causation Test for Dis- parate Treatment Liability ......... ...........36 B. Encouraging the Fuller Employment of Older Workers .....39 1. Qualifying the Cost Justification for Age Discrimi- natory Effects ..............................42 2. Insulating Employers from Discrimination Litiga- tion During a Probationary Period for Older Workers ..................................45 III. CONCLUSION...........................................49 I. INTRODUCTION - THE IMPORTANCE OF AGE DISCRIMINATION As the baby-boom generation, persons born between 1946 and 1964,' continues to age, so does the potential American labor force. * Professor of Law and Barreca Labor Relations Scholar, Boston University School of Law. I wish to thank Robin Koshy, Jack Prior and Michaela May for research assistance. This article is a revision of an article previously published as Chapter 14 in LABOR AND EMPLOYMENT LAW INITIATIVES AND PROPOSALS IN THE OBAMA ADMINISTRATION: PROCEEDINGS OF NEW YORK UNIVERSITY'S 62D ANNUAL CONFERENCE ON LABOR (2011). 1. Mitra Toossi, Labor Force Projections to 2020: A More Slowly Growing Workforce, MONTHLY LAB. REV., Jan. 2012, at 43. 13

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