60 is the New 50: A Look at Age-Based Legislation Through the Eyes of a Reluctant ‘Elder’Posted: October 26, 2017
by Hon. Linda E. Giles
Voice of the Judiciary
Age-based criteria are entrenched in Massachusetts law. I have found over two dozen statutes providing for sixty-or-over age classifications, on matters ranging, inter alia, from the Department of Elder Affairs’ definition of “elderly person” as an individual sixty years of age or over, G. L. c. 19A, § 14; to the Department of Labor Standards’ provision of an extra day of family and medical leave to care for an “elderly relative,” i.e., one at least sixty years of age, G. L. c. 149, § 52D; to the right to a speedy civil trial for sixty-five-year-olds,
G. L. c. 231, § 59F; to enhanced penalties for various crimes against the person of victims sixty or sixty-five years of age and older, G. L. c. 265, §§ 13K, 15A, 15B, 18, and 19 and G. L. c. 266, §§ 25 and 30; to the right of tenants aged sixty or more to a six-month stay in summary process proceedings, G. L. c. 239, § 9; and to the entitlement of “aged” persons sixty-five years or older to receive state supplementary payments from the Department of Transitional Assistance, G. L. c. 118A, § 1.
Perhaps I am not the most impartial arbiter on the subject of age-based legislation. As a sexagenarian fast approaching mandatory retirement age and acutely aware that Vermont judges do not need to retire until ninety (and federal judges not at all), I confess to being a reluctant “elder.” Moreover, some may argue that any attack on ageism in the law may be a “Trojan Horse” that could open the floodgates to subverting age-based benefits and entitlements. Nevertheless, I question the arbitrariness and effectiveness of many older-age-specific laws and issue a clarion call for the legislature to re-examine them. (Youth age classifications, e.g., the Juvenile Court cut-off age of eighteen when compared to the drinking age of twenty-one, G. L. c. 119, § 58; G. L. c. 138, § 34A, also are worthy of scrutiny but beyond the scope of this article.)
The battle for this not yet over-the-hill individual seems uphill at first. Some forms of age discrimination are undeniably necessary and reasonable, e.g., compelling children but not adults to be educated, or allowing adults but not children to vote. Age-based laws also are well-settled and plentiful. The federal Age Discrimination in Employment Act of 1967 (ADEA), which prevents age discrimination against persons forty years of age or older, is celebrating its fiftieth anniversary this year. Over forty years ago, the constitutionality of age-based classifications was enshrined in the United States Supreme Court’s holding in a Massachusetts case, Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976); in Murgia, the Court concluded that uniformed state police troopers facing mandatory retirement at fifty did not constitute a suspect class for purposes of equal protection analysis. Over the past several decades, there has been a proliferation of legislation aimed at protecting “elders,” commonly defined as sixty-five or older, from abuse, neglect, and discrimination.
To be sure, protecting vulnerable senior citizens from abusive or unfair treatment is a laudable government interest. Furthermore, “[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific.” McGinnis v. Royster, 410 U.S. 263, 270 (1973), quoting Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70 (1913). Even so, chronological age has served as an arbitrary, overbroad, and expedient proxy for more relevant but difficult-to-quantify characteristics, such as frailty, vulnerability, or need. Older adults are subjected to disparate treatment on the basis of stereotyped assumptions about their abilities and disabilities; and protections for “elders” are premised on the inaccurate pigeon hole that they are impaired cognitively or are physically- or decisionally-challenged. Policy-makers lump older individuals into age-based, monolithic categories (e.g., middle-old, old, the oldest) without account for very real differences among the age cohorts. Cf. Kenneth F. Ferraro, “The Evolution of Gerontology as a Scientific Field of Inquiry,” Gerontology: Perspectives and Issues 13, 13-33 (3rd ed. 2007). As the average life expectancy has increased to 78.8 years, Centers for Disease Control and Prevention FastStats – Deaths and Mortality, and one in five over age sixty-five in Massachusetts is still working, “1 in 5 over 65 still on the job,” Boston Globe, June 12, 2017, elderly status, widely assumed to start at age sixty-five, has become an increasingly poor predictor of physical and mental limitations. Centers for Disease Control and Prevention, Quickstats: Estimated Percentage of Adults with Daily Activity Limitations by Age Group and Type of Limitation – National Health Survey, United States. Accordingly, fixed age thresholds for classifying people as old, which do not take into account improvements in health and longevity, seem increasingly anachronistic.
Furthermore, some protections for “elderly” persons, albeit well-intentioned, may not be so benign. For example, a mandatory reporting system in Massachusetts requires individuals in nineteen specified occupations, including physicians and nurses, to report suspected abuse of “elderly persons” sixty years of age or over to the Department of Elder Affairs. G. L. c. 19A, §§ 14, 15. Mandated disclosures under the law may implicate the release of the alleged victim’s privileged medical information, which, if done without that “elder’s” consent, would undermine his/her right to informational privacy. At least one legal scholar has argued that age-specific legislation may violate the civil rights of older adults and has called for expanding the scrutiny of age-based classifications from rational basis to intermediate. See Nina A. Kohn, “Rethinking the Constitutionality of Age Discrimination: A Challenge to a Decades-Old Consensus,” 44 U.C.Davis L.Rev. 213 (2010); Nina A. Kohn, “Outliving Civil Rights,” 86 Wash.U.L.Rev. 1053, 1058-59 (2009). In yet another context, health care systems sometimes rely on age-based classifications to deny older adults the right to obtain certain medical procedures regardless of need. Although doctors routinely tell patients over sixty-five that they are not good candidates for organ transplants, Johns Hopkins’ investigators have found that older adults can enjoy excellent transplant outcomes in this day and age. See Dorry L. Segev, M.D., Ph.D., et al., “Candidacy for Kidney Transplantation of Older Adults,” Journal of the American Geriatrics Society, Vol. 60, Issue 1 (January 12, 2012).
Maybe it is time to rethink the cavalier use of imperfect age-based criteria in our laws, starting with our very definition of “old age.” After all, population experts have concluded that sixty really is the new fifty. See, e.g., W. Sanderson, S. Scherbov, “Faster Increases in Human Life Expectancy Could Lead to Slower Population Aging,” PLOS ONE (April 2015). A number of research demographers have suggested that policymakers focus less on chronological age and embrace measures based on prospective age, i.e., the expected remaining years of life for a given age range. See W. Sanderson, S. Scherbov, “Rethinking Age and Aging,” Population Bulletin vol. 63, no. 4, Population Research Bureau (December 2008). Prospective age is a population-based concept that takes into account improvements in health and life expectancy which the static concept of chronological age does not. Id. Perhaps Oliver Wendell Holmes, Jr., one of Massachusetts’ greatest native sons, had the notion of prospective age in mind when, at the age of sixty-three, he quipped, “[o]ld age is fifteen years older than I am.” In the humble opinion of this purported “old ager,” truer words were never spoken.
 The opinions I express are my own and do not reflect the view of the Massachusetts Superior Court. Though I recommend legislative reform, I of course will continue to follow the law as it exists.
Judge Linda Giles has served as an Associate Justice of the Superior Court since 1998. She is an adjunct professor of law at Suffolk University Law School and a member of the Board of Editors of the Boston Bar Journal. Judge Giles is a graduate of McGill University and New England School of Law.