Hastings Law Journal


Gary Minda


In the last decade, "downsizings," or strategic mass layoffs, have swept corporate America. In order to obtain a more desirable short-term costs-to-income ratio for their quarterly reports, corporations large and small have liberally cut their work forces. This trend has dramatically shaken the traditional de facto work relationship contract between employers and long-term employees. Employees can no longer count on stable work relationships with their employers, nor can they be secure in receiving promised pension benefits after many years of work.

None have been more affected by this business strategy than older workers. Corporations tend to "downsize" older employees because they are viewed as more expensive, due to salary and benefits accrued through seniority, and less productive because of less familiarity with cutting-edge technologies. This discriminatory focus on older workers has survived attacks under the Age Discrimination in Employment Act (ADEA) and the Employee Retirement Income Security Act (ERISA) by hiding beneath a professed general cost-cutting intent.

In his Article, Professor Minda traces the causes of the downsizing phenomenon, identifies its particular impact on older workers, and explains why current judicial interpretation of ADEA and ERISA has failed to address the problem. He proposes a model of interpretation that extends the reach of these statutes beyond the narrow confines of the analysis that courts have imported from Title VII jurisprudence dealing with race and sex discrimination.

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