THE SUPREME COURT has now ruled on how the 1967 Age Discrimination Act applies to retirement programs then in existence, and the timing could hardly be more fortuitous. Congress is on the verge of revising that act and there is still time to clarify the point the courts have found murky. Seven justices said Congress in 1967 did not intend to invalidate existing programs that required employees to retire prior to their 65th birthday; two justices said it did. Regardless of which view accurately reflects the intent of Congress a decade ago, the result is not good public policy. Congress should now make it clear that the bar against mandatory retirement because of age applies to all retirement programs unless they fall under a specific exemption.
We have noted before that no one can be quite sure what the effect will be of the amendments to this act that have already passed both houses of Congress - those that would raise the age from 65 to 70 not only for mandatory retirement but also for other employment provisions that have been used to keep people in that age bracket out of the work force. We suspect that in the long run the effect of the higher retirement-age level will be beneficial not only to older workers but to the whole country. But there may be some substantial problems as the provisions begin to take effect.
Those are not, however, the problems that Congress should be worrying about in reconciling the differences between the House and Senate versions. The principal concern now is the need for uniformity of treatment. While there may be some narrow exceptions because of the peculiarities of certain kinds of employment, all employees ought to reach age 65 or 70 on the same legal footing. The disparity in treatment made possible by the court's decision - a disparity that would determine your mandatory retirement age on the basis of when your employer put a plan into operation - is a form of discrimination that is just as bad as the age discrimination that the act was itnended to prevent.