RBG and the Audacity of Wanting to Work

Supreme Court Justice Ruth Bader Ginsburg will be the first woman in U.S. history to lie in state at the Capitol. While it’s shocking that no other woman in our more than 240-year history has received this honor, it seems particularly fitting that this trailblazer for gender equality would be the first.

And while she’s most known for advancing women’s rights, she also should be celebrated for being a leading voice on the Supreme Court against age discrimination in the workplace. She, like millions of older Americans, fought for the dignity of wanting to work at any age.

As Sheri Levy points out, “For over 20 years, [Ruth Bader Ginsburg] faced blatant ageism with persistent public calls to step down as a U.S. Supreme Court Justice, a position that uniquely has a lifetime appointment.” During an open forum at the 2018 Sundance Film Festival, when asked about retirement, Ginsburg said “As long as I can do the job full steam, I will be here.”

To the New York Times in 2015 and CNN in 2018, Ginsburg repeatedly responded to calls to retire by pointing out that other Justices had stayed on the court until age 90. But calls to retire are nothing new to the older adults who have faced forced retirement, or are the first to be downsized because of their age.

In 1967, while Ginsburg was a Rutgers law professor, Congress enacted the federal Age Discrimination in Employment Act (ADEA) to prohibit age discrimination in the workplace and promote the employment of older workers. Like many other civil rights laws of its time, “ADEA transformed the workplace by breaking down barriers to opportunity and building foundations of equality and fairness.”

The U.S. Equal Employment Opportunity Commission (EEOC), which is charged with investigating age discrimination complaints under the ADEA, in 2019 received more than 15,000 filings resulting in more than $75 million in monetary benefits to the victims. Lawsuits have cost employers substantial sums for ADEA violations, such as California Public Employees’ Retirement System, which settled for $250,000,000 after reducing the disability pension benefits of police and firefighters based on age. Sprint Nextel settled for $57.5 million for 1,700 older workers laid off. In fact, recently the EEOC found that IBM leaders directed managers to replace older workers with early career hires.

More than 50 years after ADEA, most older adults have faced some sort of age-related discrimination, yet only 3 percent report having made a formal complaint to someone in the workplace or to a government agency. According to the EEOC, there is significant “evidence that age bias and negative age stereotypes about older workers continue to affect older workers’ employment experiences.”

Despite the ADEA’s protections, older workers face discriminatory firings, harassment, age discrimination in hiring, mandatory retirement and discriminatory denial of benefits—not to mention the intersectional civil rights claims of gender, race, sexual orientation and age discrimination.

During her time on the Supreme Court, Ginsburg ruled on 18 ADEA-related cases. In April 2020, she joined the majority in Babb vs. Wilkie, making it easier for those older than 40 to sue the federal government for age discrimination.

“The 8-to-1 ruling rejected a Trump administration position that sought to dramatically limit the legal recourse available to federal workers,” wrote NPR’s Nina Totenberg.  In 2018, Ginsburg also drafted the unanimous opinion in Mount Lemmon Fire District v. Guido that found the ADEA applies to all government employers, no matter the size of the organization. It found in favor of Arizona firefighters who were terminated because of their age.

For her unyielding tenacity in fighting for gender, LGBT and racial equity, Ginsburg earned supreme pop-culture status as the “Notorious RBG.” We at ASA will also always remember her for being one of the few national champions who worked tirelessly to dismantle ageism.

Peter Kaldes, Esq. is President and CEO of the American Society on Aging.

Photo credit: "Associate Supreme Court Justice Ruth Bader Ginsburg Visits WFU" by WFULawSchool is licensed under CC BY-NC-ND 2.0