Although people who aren’t employment lawyers often don’t think of age discrimination as a civil rights issue, there is nonetheless a comprehensive scheme of federal law protecting workers over 40 from discrimination based on age. Some commentators have called for an expansion of that statutory scheme (see the transcript of this U.S. Commission on Civil Rights briefing on the Age Discrimination in Employment Act.)

Nobody is in favor of bias and invidious age discrimination directed against individuals over the age of 40. Yet a spate of articles from across the political spectrum suggests that it is actually the problems of young Americans that deserve increased attention from policymakers.  Statistics suggest that younger generations are burdened with more educational debt than past generations have been. They are unemployed or underemployed at higher rates than older Americans.  Yet they are also disproportionately responsible for covering the costs of health care for older Americans.

How might employment law work against the interests of young Americans?  Laws regulating employment can serve the commendable purposes of protecting workers from discrimination based on characteristics that are not related to job performance. But these laws also increase the risk that anyone who is fired or demoted will bring costly lawsuits against the employer, meaning that employers may be more nervous about hiring new employees because the cost of a bad hire becomes prohibitively high. These laws thus may make it more difficult for younger workers to find their first jobs. It is also noteworthy that federal age discrimination laws prohibiting employers from discriminating against older workers and limit employers’ use of practices that have an adverse effect on workers over the age of 40. But there is no equivalent protection for age discrimination for younger workers (in contrast to most other anti-discrimination laws, which are symmetrical.)

Increasingly, it appears that employers have attempted to avoid the problem of getting stuck with the wrong employee by first requiring many entry-level employees to work as interns for little or no pay. These practices have long been common in highly desirable fields, such as fashion, entertainment, or the higher levels of politics. But news stories suggest that they are increasingly being employed at less glamorous workplaces.  In any case, the spread of low-paid and unpaid internships will make it increasingly difficult for younger workers from less well-off backgrounds to break into many careers. There have been calls for the federal Department of Labor and its state and local equivalents to use the minimum wage laws aggressively to crack down on unpaid internship programs.  But getting the opportunity to prove oneself to an employer by working for free may be better than having no opportunity to prove oneself at all, meaning that such calls may leave prospective junior employees still worse off.

The Federalist Society will address some of these issues at its National Lawyers Conference this year, to be held at the Mayflower Hotel in Washington, DC from November 13 to 15. The showcase panels addressing the general conference theme include:

 

THURSDAY, NOVEMBER 13

Showcase Panel I: Youth, Employment, and the Law
9:30 a.m. – 11:15 a.m.
Grand Ballroom

This panel will examine intergenerational equity issues raised by employment discrimination laws, including those protecting the elderly from discrimination.  Those laws, minimum wage laws, laws favoring unionization, and laws countering arbitrary dismissal have obvious appeal.  But many of those very laws greatly raise the costs to business of entry-level hiring.  One consequence may be that many young people are only able to enter the work force as interns or fellows.  This may be especially true for minorities.  Are these costs worth the benefits?  Is there some middle ground?

• Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law, and James Parker Hall Distinguished Service Professor of Law, University of Chicago Law School
• Hon. Chai Rachel Feldblum, U.S. Equal Employment Opportunity Commission
• Hon. Gail Heriot, U.S. Commission on Civil Rights, and Professor, University of San Diego School of Law
• Prof. J. Hoult “Rip” Verkerke, Director, Program for Employment and Labor Law Studies, University of Virginia School of Law
• Moderator: Hon. Jennifer W. Elrod, U.S. Court of Appeals, Fifth Circuit

FRIDAY, NOVEMBER 14

Showcase Panel II: Intergenerational Equity and Social Security, Medicare, Obamacare, and Pensions
10:30 a.m. – 12:00 noon
Grand Ballroom

Several major federal programs directly tax the young to provide benefits to the elderly.  This is a main feature of the Affordable Care Act, the Social Security System as it currently works, and of the laws guaranteeing pensions.  In addition, the national debt raises intergenerational equity issues.  What obligations do these debts impose on the young?  Are they all of a piece or are the answers different in each case?  Is it true that this generation is likely to be poorer than the previous one?  What role does our legal system play in this?  How will the law address pensions that contribute to bankrupting cities or states?  What is the nature of the Social Security contract?

• Hon. Christopher C. DeMuth, Distinguished Fellow, Hudson Institute, Inc., and former Administrator for Information and Regulatory Affairs, U.S. Office of Management and Budget
• Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law
• Prof. David A. Weisbach, Walter J. Blum Professor of Law and Senior Fellow, The Computation Institute of the University of Chicago and Argonne National Laboratory
• Moderator: Hon. Frank H. Easterbrook, U.S. Court of Appeals, Seventh Circuit

SATURDAY, NOVEMBER 15

Showcase Panel III: Higher Education: Run for the Benefit of Students or Faculty or Administrators?
9:00 a.m. – 10:30 a.m.
Grand Ballroom

Success in today’s global economy virtually requires a college or post graduate degree, but colleges and law schools have raised tuition enormously.  The government subsidizes students to take huge loans to pay for college and law schools, loans which inflict an increasing burden on students, including law students in a troubled economy.  Do these loans pay as much for faculty research and administrators as for direct student education?  Are faculties producing research that justifies these costs?  Are students getting a good deal now?  Could or will on line education provide students with similar education at a fraction of the cost?  Is it time to ask some hard questions about higher education?  Does education policy benefit average and below average students or does it merely benefit the top of the class?  This panel will focus to a significant degree on law schools.

• Prof. Paul F. Campos, University of Colorado Law School
• Ms. Anne D. Neal, President and Co-founder, American Council of Trustees and Alumni
• Prof. Daniel Polsby, Dean and Professor of Law, George Mason University School of Law
• Prof. Richard Kent Vedder, Ohio University
• Moderator: Prof. Thomas D. Morgan, (retired), The George Washington University Law School

Showcase Panel IV: ROUNDTABLE: Is the Future of the American Dream Bright?
2:15 p.m. – 4:00 p.m.
State Room

America has always been a forward-looking country.  What is the future for our young – for the best and brightest – and for everyone else?  Does the American Dream still apply?  Does our current legal and regulatory system offer the young prospects for a more just and better society, or for an overregulated society that stifles enterprise and compromises individual liberty?  How do we balance these competing concerns and what role can and should our legal system play?  Finally, there has been much discussion recently about income inequality.  Are efforts to address that through law or taxes beneficial or harmful to the young and their vision of a better society?

• Hon. Rachel L. Brand, Member, Privacy and Civil Liberties Oversight Board; Senior Advisor to the U.S. Chamber Litigation Center, United States Chamber of Commerce; and former Assistant U.S. Attorney General for Legal Policy United States Department of Justice
• Hon. Lanny J. Davis, Principal, Lanny J. Davis & Associates, former Special Counsel to the President, and former Member, Privacy and Civil Liberties Oversight Board
• Prof. Neal K. Katyal, Paul and Patricia Saunders Professor of National Security Law and Director, Center on National Security and the Law, Georgetown University Law Center, Partner, HoganLovells US LLP, and former Acting U.S. Solicitor General
• Prof. Randall L. Kennedy, Michael R. Klein Professor of Law, Harvard University Law School
• Dr. Charles A. Murray, W.H. Brady Scholar, American Enterprise Institute
• Moderator: Ms. Karlyn Bowman, Senior Fellow and Research Coordinator, American Enterprise Institute

Interested readers are encouraged to attend!