In 1967, Congress recognized that the number of displaced older people in the workforce was growing, due in large part to the problems older people were encountering in finding new jobs once displaced from a job of many years. In these times of corporate downsizing, older workers are particularly vulnerable to bearing the brunt of workforce reductions due to the fact that they are often "paid a little more because they have been with the company a little longer." As a result, since 1967 older workers have been protected from discrimination based on their age by the Age Discrimination in Employment Act (ADEA). From the time that the ADEA became effective until recently, if an employer used criteria such as high salary, seniority, tenure, or experience to make unfavorable employment decisions, courts either found that the employer was discriminating per se or required the employer to justify the use of such factors that inevitably correlate with age. Now, however, a confluence of Supreme Court decisions, appellate court decisions, and legislative action and inaction allows employers to make decisions based on age-correlated factors with virtual impunity. Today, courts frequently decide age discrimination cases involving the admitted use of age-correlated factors, which formerly were sure winners for the plaintiff, on summary judgment in favor of the defendant.
42 Wayne L. Rev. 1 (1995).