Navigating the Patchwork of Civil Rights Protections for Older Adults

By Kevin Prindiville and Denny Chan

The long and arduous fight for civil rights in the United States continues to dominate political discourse, grab headlines, and light up social media. Yet, older adults rarely star in these stories and debates. This hides the reality that for older adults, civil rights issues are incredibly rel­evant and important.

Take Barbara, who was told she could not use her walker in her residential facility’s din­ing room. Or Andres, who cannot find a dentist in his community who speaks Spanish, his native language. Or Karen, who lives in a nursing facil­ity where the staff refuses to use her pronouns. Or Arthur, who was laid off from his job shortly after turning age 60 because the company was looking for “fresh ideas.”

Advocates and professionals working with older adults should recognize these examples as situations in which older adults can assert their civil rights to ensure that they are treated fairly and not discriminated against on the basis of their identity. This article aims to educate older adults and the professionals who advocate for and serve them about the extant civil rights laws that protect older adults and how best to assert them to achieve just outcomes.

What Are Civil Rights?

“Civil rights” refers to a set of rights meant to ensure equal treatment of all people—and to prevent and offer remedies to discrimina­tion—particularly on the basis of certain legally protected characteristics. Laws, state con­stitutions, and the U.S. Constitution guaran­­tee these rights.

Traditional civil rights laws include those that protect individuals from discrimination and unfair treatment on the basis of their race, national origin, sex, family status, age, disabil­ity, and religion. Emerging areas of civil rights include protections based on sexual orientation and gender identity.

All civil rights protections are important to older adults, particularly for those who also are members of communities that tradi­tionally have been subject to and continue to face discrimination. 

How Do Civil Rights Issues Impact Older Adults?

Protections from discrimination based on char­acteristics like race, national origin, gender, and LGBTQ identity have been critical to protecting older people throughout their lives, and remain relevant as they age.

Growing older is no protection from discrim­ination and related health and economic dis­parities. Data on health status and economic security among older adults reveal the impacts that discrimination based on race or gender have on older people. Poverty rates for older women of color are significantly higher than for older white men (Cubanski et al., 2018). Older people of color also are significantly more likely to report poorer health status than are their white peers (Wallace, 2015).

The blatant and direct forms of discrimi­nation people face for some of the reasons out­lined above do not cease because people grow older, but instead may progress or become more complicated. LGBTQ older adults are likely to face ongoing discrimination based on their gen­der identity and sexual orientation. For example, a transgender woman may be misgendered or denied care by her Medicare doctor, or a gay man may be prohibited from visiting his husband in a Medicaid nursing facility.

In addition to civil rights issues that impact people throughout their lifetime, there are some civil rights issues that become especially relevant as people age. The most obvious is ageism—as people age they are likely to face discrimination based on their age, particularly, but not exclu­sively, in the employment context. More than 60 percent of workers ages 45 and older say they have seen or experienced age-based discrimina­tion in the workplace and more than 90 percent of those report that it is common (Perron, 2018).

Disability is another critical civil rights issue that affects people as they grow older, as disability tends to increase with age. More than one in three people ages 65 and older have a disability (Kraus et al., 2018). An older adult with a disability may face discrimination similar to that faced by younger people with disabilities, including discrimina­tion in the workplace, in access to public spaces and transportation options, or in their choices for housing and long-term services and supports.

It is important to note that many older adults hold identities that intersect with many of the civil rights issues outlined above. For example, an older, black, lesbian woman with a disability may experience discrimination in the workplace or in a long-term-care facility; this can be due to not just one part of her identity, but some combi­nation of all parts.

It is precisely because civil rights issues affect older adults that older adults often have been key leaders in the fight for civil rights. It was an older woman, Edith Windsor, who was the named plaintiff in the Supreme Court case, United States v. Windsor (2013), which struck down the Defense of Marriage Act. Maggie Kuhn was an older woman when she famously founded the Gray Panthers and served as the nation’s lead­ing voice for confronting ageism. Representative John Lewis (D–GA), now age 79, is one of many veterans of the civil rights movement who con­tinues to be a powerful voice for racial equity.

What Laws Exist to Protect These Rights?

An array of federal laws is designed to estab­lish and protect older adults’ civil rights. Some of these laws are broadly applicable to people of all ages, and also are critically important to older adults.

The Civil Rights Act of 1964 prohibits dis­crimination based on race, color, religion, sex, or national origin. Case law and federal regulations have interpreted the national origin protections to prohibit discrimination based on language as well (Lau v. Nichols, 1974). The Civil Rights Act can be used to ensure that black or Latinx older adults do not receive worse care in nurs­ing homes or are not denied access to housing options on the basis of race. Protections in the Act also can be used to ensure that older adults who are limited English proficient can receive healthcare materials about their Medicaid bene­fits in a language they understand.

The Fair Housing Act (1974), which prohib­its discrimination in the sale, rental, and financ­ing of housing based on race, color, religion, sex, national origin, familial status, or disability, pro­vides another example of a broad civil rights law that also is critically important to older adults. The Act can be used, for example, to protect elders of color from being screened from con­sideration for rental assistance programs. This Act is particularly relevant for older adults with disabilities: In one well-publicized case in New York, civil rights lawyers used the Fair Housing Act to claim that an assisted living facility could not bar residents from using walkers in the com­mon dining room (Span, 2018).

Additional civil rights laws apply to the types of discrimination that are likely to occur as peo­ple age. The Age Discrimination in Employment Act (ADEA) (1975) prohibits discrimination in employment against anyone who is at least 40 years old. The Age Discrimination Act (ADA) (1975) prohibits federally funded programs like Medicare and Medicaid from engaging in age discrimination. These age-based civil rights laws can be used to challenge unfair actions that employers or potential employers take against employees or job candidates. They also can be used to ensure equal access to healthcare ser­vices provided via public programs, or by provid­ers that receive federal funding.

The Americans with Disabilities Act (ADA) (1990) prohibits discrimination based on disabil­ity, including in employment settings and regard­ing public accommodations. The ADA ensures that public buildings, sidewalks, transporta­tion options, other public facilities, and web­sites accommodate the needs of people with disabilities, including older people. In the land­mark case decision, Olmstead v. L.C. (1999), the Supreme Court relied on protections in the ADA to rule that states must not unnecessarily segre­gate people with disabilities, and that they must ensure people with disabilities receive services in the most integrated setting appropriate to their needs. This protection has been used in subse­quent lawsuits across the country to protect and expand Medicaid-funded home- and community-based services for older adults, including in the Alexander v. Senior and Bragg case that Justice in Aging recently brought against the State of Florida (Justice in Aging, 2019).

The newest civil rights law that is essential to protecting older adults is the Health Care Rights Law, passed in 2010 as part of the Affordable Care Act. Also known as Section 1557 of the law, the Health Care Rights Law is the only federal law that applies existing civil rights protections directly to health programs and activities that receive federal financial assistance. It explicitly prohibits discrimination on the basis of sex, age, race, ethnicity, and national origin, and disabil­ity in the provision of health and health insur­ance services.

In addition to incorporating existing civil rights laws, the regulations implementing Sec­tion 1557 make it easier for individuals who are discriminated against to obtain relief in court. The regulations allow individuals to challenge certain types of discrimination, such as inter­sectional discrimination (based on multiple protected identities) and disparate impact dis­crimination (when a policy or practice dispro­portionately impacts a protected group). They also help to protect transgender and gender non-conforming individuals from discrimination.

There are, however, areas where federal stat­utory protections against discrimination do not yet exist; there is federal statute that explicitly prohibits discrimination based on LGBTQ iden­tity. The Equality Act, a bill that in May 2019 passed the House of Representatives, would change that by amending the Civil Rights Act to prohibit discrimination based on sexual orienta­tion or gender identity. Though the bill passed in the House, it is not likely to advance further over the next year and a half given the current com­position of the Senate.

In addition to the protections that exist under federal law, states have their own framework of civil rights protections, which can mirror federal civil rights law, but often can serve as an impor­tant supplement by offering additional protections. Twenty states have laws that explicitly prohibit discrimination against LGBTQ individuals.

What Avenues Exist for Enforcing and Exercising These Rights?

Each of the civil rights laws described above includes some mechanism for enforcing the rights of people who are discriminated against in violation of the law. The most well-known venue for enforcing rights is the courts. Indi­viduals who have been discriminated against can bring their claim before a court to get re­­lief. Courts have been powerful guardians of rights throughout U.S. history, and can play a vital role in striking down discriminatory policies and practices. The landmark Supreme Court ruling Brown v. Board of Education (1954) helped to end segregated schools, while more recent decisions like Grutter v. Bollinger (2003) have protected important policies such as affir­mative action in higher education.

It is less well-known that for most civil rights laws there is also an administrative proce­dure for raising violations. Depending upon the law, these procedures typically will designate either a federal or state government adminis­trative agency as being responsible for enforc­ing the particular law, including receiving and investigating complaints. Filing a discrimina­tion claim with an administrative agency allows an agency to investigate the claim and poten­tially resolve the matter. For instance, an indi­vidual who believes she was overlooked for a job because of her age could file a complaint with the U.S. Equal Employment Opportunity Commis­sion, the federal agency tasked with enforcing the ADEA. Some civil rights laws will require that an individual use the administrative proce­dure as a prerequisite to filing in court, known as an “exhaustion” requirement.

Finally, problems sometimes can be resolved without having to pursue a formal complaint or a lawsuit. This is when the assistance of a knowl­edgeable and passionate advocate can be espe­cially helpful. A frank conversation, raising an issue with a supervisor, or a strongly worded let­ter referencing the civil rights protections can sometimes quickly resolve issues. Civil rights violations that are systemic or that result from government or corporate policies are more likely to require a formal process to resolve adequately.

What Gaps and Weaknesses Exist in the Current Civil Rights Framework?

Unfortunately, even where strong protections exist, there are considerable (and growing) gaps in how and whether those protections can be effectively enforced in the courts.

Over the past several decades, the federal judiciary has become increasingly conserva­tive, leading to a surge of cases that restrict civil rights—in addition to cases that limit worker’s rights, weaken consumer protections, and under­mine critical safety net programs like Medicaid (Wolf, 2019).

Some negative federal court decisions directly challenge whether civil rights protec­tion exists at all. The transgender protections afforded in the Health Care Rights Law have been challenged by a group of providers and insurance companies in Franciscan Alliance v. Burwell (2016), which argued that the protec­tions forced them to violate religious beliefs. A federal district court judge in Texas agreed with the companies and issued a nationwide prelim­inary injunction preventing the enforcement of the transgender and sex-based protections; liti­gation is ongoing (Costello and Tomazic, 2018).

In other cases, courts have acknowledged that protections exist, but have watered them down to make them nearly unenforceable. In Alexander v. Sandoval (2001), the Supreme Court decided that a private right of action did not exist for claims challenging disparate impact discrimination on the basis of race, ethnicity, and national origin under Title VI of the Civil Rights Act. In other words, the decision prevented indi­viduals from bringing claims that challenged disparate impact discrimination under the stat­ute, leaving only public enforcement entities to file lawsuits. Individuals could still allege claims of intentional discrimination, but those cases are generally much harder to win.

The court took similar action to weaken op­­por­­tunities to enforce age-based discrimination protections in Gross v. FBL Financial Services, Inc. (2009). Jack Gross brought the case by suing his employer, FBL, under the ADEA. Prior to the Supreme Court’s decision in this case, the pre­vailing view in ADEA claims had been that a plaintiff could establish discrimination by show­ing age was simply a motivating factor in an employment decision made by the employer. At that point, the burden was on the employer to show that the same actions would have been taken regardless of age. The Court held there was no such shifting of burden to the employer and that the plaintiff must show, by a prepon­derance of evidence, that age was the “but-for” cause of the unfavorable employment action.

This decision significantly raised the bar for bringing a successful claim under the ADEA. In the ongoing fight about the scope of ADEA pro­tections, the Supreme Court, in its October 2019–2020 term, is set to decide whether the “but-for” causation requirement in the ADEA applies 
to federal workers in the case Babb v. Wilkie (SCOTUSblog, 2019).

When courts have been more willing to rec­ognize and enforce civil rights protections, a gap exists around how to acknowledge the impact of intersectional discrimination claims. The current framework for enforcing civil rights is set up to recognize this intersectional­ity. The regulations implementing Section 1557 expressly allow for claims of intersectional dis­crimination, but courts continue to grapple with thorny questions, such as differing legal requirements and standards in adjudicating intersectional claims.

Unfortunately, the trend of federal courts undermining civil rights protections is likely to continue over the next several years, as President Trump has appointed a record number of judges to lifetime appointments on federal courts, the vast majority of whom are conservative and some of whom have a record of directly challenging civil rights protections.

It is notable that during Supreme Court Jus­tice Kavanaugh’s recent confirmation hearings, Kavanaugh declined to state whether he thought that Obergefell v. Hodges, the landmark case establishing that the fundamental right to marry is guaranteed to same-sex couples, was correctly decided (Hinzmann, 2018). Several of Presi­dent Trump’s nominees to the court also have declined to express their support for Brown v. Board of Education, the Supreme Court case that established as unconstitutional racial segrega­tion in schools (Meckler and Barnes, 2019).

In addition to appointing conservative judges to the federal judiciary, the Trump Administration has been working to weaken civil rights protections by rewriting, or at­­tempting to rewrite, federal regulations that interpret many civil rights laws. In 2019, the Administration announced proposed changes to the regulations implementing the Health Care Rights Law (Musumeci et al., 2019). These changes, if finalized, would essentially elimi­nate protections for transgender individuals and reduce protections for individuals with limited English proficiency.

Earlier in 2019, the Administration finalized its religious refusals of care rule that lets medical providers put personal beliefs before an individ­ual’s health, substantially limiting the LGBTQ community’s access to quality, non-discrimina­tory care (Gostin, 2019). These steps are part of a broad attack from the Trump Administration on civil rights, including policies like the Muslim ban and changes to immigration law regulations that make it harder for certain types of immi­grants to enter the country.

What to Do if One Spots a Civil Rights Violation?

Despite the rather gloomy picture for enforce­ment of civil rights outlined above, opportunities exist to protect older adults when they experi­ence discrimination. In most cases, an attorney is necessary to fully effectuate these rights, but for non-lawyer advocates there are specific actions to take if they think the civil rights of an older adult they know or serve have been violated.

First, advocates should get the details about what has occurred. Claims of discrimination will be successful only if there is a sufficient fac­tual record to support them. Because many peo­ple, particularly older adults, may struggle to remember details as time moves on, it is impor­tant to gather as many details as possible about the incident or situation quickly. In the case of an assisted living facility refusing to allow a resi­dent to use a walker in the dining room, it would be critical to gather details about who told the resident the walker was not allowed, their posi­tion at the facility, when the information was relayed, exactly what was said (including by the resident), whether any information was provided in writing, whether anyone else was told the same thing, and other such details.

Advocates should ask as many questions as possible and take careful notes. They should gather information on what was provided to the resident in writing. They should also take down names of facility employees or of other residents who may have heard about the policy and take photos of any relevant signs or other physical evidence.

Second, advocates should assess and doc­ument any harm that has come to the older adult as a result of the discrimination. Prov­ing a claim of discrimination and securing some form of relief often rely on demonstrat­ing that the person affected has suffered some harm as a result. For the older adult who has been denied treatment by a medical provider because they are transgender, an advocate would want to collect information about what happened as a result. They may ask questions about whether the person was eventually able to receive care. If not, what health repercus­sions did they suffer? If they did get care even­tually, what were the impacts of the delay? Was there any financial impact to not receiving care? How did denial of care and the provider interaction make the person feel? How has it affected their relationship with the provider or their willingness to seek care from other medi­cal providers?

Third, advocates should refer the case to an attorney. Even if the situation does not result in litigation in court, pursuing an informal or administrative complaint regarding a civil rights violation may be more successful if done by a law­yer who has experience advocating for the legal rights of clients and pursuing discrimination claims. An advocate may be able to find a lawyer to assist the older adult at a local legal services or public interest law organization, a local civil rights law firm, or through the local Older Ameri­cans Act Title IIIB legal services providers.

Even if an advocate cannot find a lawyer who can provide full representation to the older adult, they may be able to find a lawyer who can provide basic advice to assist the advocate or the older person in taking action. They may advise writing to the assisted living facility that is barring the use of a walker in a community dining space; or they may advise filing a complaint with the state Med­icaid agency’s Civil Rights Office against a Medi­caid doctor who refused to provide treatment to an elder because that person is transgender.

Advocates should act quickly if they are con­cerned that an older person’s rights have been violated. Many civil rights laws have time lim­its for filing complaints. It is important to raise issues as soon as they are spotted to preserve the older person’s right to pursue legal remedies.

 

Conclusion

As America’s aging population grows and becomes more diverse, civil rights issues will only become more and more important to the aging services network. Current civil rights laws provide key protections that benefit all older peo­ple over the life span. More advocacy is needed, however, to expand those laws and to strengthen enforcement opportunities. The aging services network can and should be a critical component of a continued fight for civil rights, to ensure that all older adults are protected from unfair, dis­criminatory treatment.

 

Kevin Prindiville is executive director of Justice in Aging, in Oakland, California. Denny Chan is senior staff attorney in Justice in Aging’s Los Angeles office.

References

Age Discrimination Act of 1975. 

42 U.S.C. § 6101, et seq.

Age Discrimination in Employ­ment Act of 1975. 29 U.S.C. § 621, et seq.

Alexander v. Sandoval. 532 U.S. 275 (2001).

Americans with Disabilities Act. 1990. 42 U.S.C. § 12101, et seq.

Brown v. Board of Education. 347 U.S. 483 (1954).

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