A Pluralist Theory of Age Discrimination

Stuart Goosey

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509933778
• Edition: 1
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

This book provides a comprehensive theory of age discrimination that can guide the direct and indirect age discrimination provisions of the Equality Act 2010. The Act holds that unequal treatment on the grounds of age and measures that are on their face age-neutral but have the effect of disadvantaging particular age groups are lawful only if the treatment can be shown either to be a 'proportionate means of achieving a legitimate aim' or if the treatment fits into a specifically prescribed exception. In this way, the proportionality test distinguishes justified and unjustified age-differential treatment with only the former legally permissible. This book outlines and defends a pluralist theory of age discrimination that assists in making the distinction between justified and unjustified age-differential treatment. The theory identifies the principles that explain when and why age-differential treatment wrongs people and the principles that can justify this treatment. It is a pluralist theory because it recognises that age-differential treatment can wrong people for a number of different, overlapping reasons, and these different reasons should inform how we apply age discrimination law. The pluralist approach to age discrimination theory can improve legal reasoning in age discrimination cases by articulating the relevant principles and competing interests that are at stake in age discrimination claims. In constructing the theory, the book adopts the reflective equilibrium method. This requires that we examine our initial moral beliefs about age discrimination by seeking coherence with beliefs we have about similar moral and philosophical issues and revising the initial beliefs as a result of challenges to them. In applying this method, the book identifies the following five principles to form a pluralist theory of age discrimination: equality of opportunity, social equality, respect, autonomy and efficiency.

1

Introduction

The economic and social issues raised by age and ageing have become increasingly prominent in the UK. As the UK faces an ageing population, there is much debate and concern about what impact this will have on welfare costs, economic growth and opportunities for the young.¹ This has led to questions about how to fairly distribute resources across different generations.² At the same time, the gradual incorporation of anti-discrimination policies into mainstream political discourse has led policymakers to grapple with the question of age discrimination.

Legal interventions concerning age were once generally limited to setting minimum age limits for activities such as marriage, leaving education, paid employment, consuming alcohol and driving, and for establishing rules concerning retirement. However, increasingly there is a recognition that the law should engage with promoting fairness between age groups, most recently in the Equality Act 2010, which prohibits age discrimination in access to employment, training and education; membership of associations and clubs; and provision of goods and services.³

Despite this legal intervention, there is relatively little commentary on the rationales for age discrimination law, and much of the literature on the topic is dismissive of age discrimination as a problem requiring a legal solution.⁴

Applying age discrimination laws, however, requires careful thought about when and why age-differential treatment is wrong and when and why it is justified. This is because the Equality Act 2010 provides that age-differential treatment is subject to a proportionality test, which provides that less favourable treatment on the grounds of age (which engages the direct age discrimination provisions) and measures that are age-neutral but have the effect of disadvantaging particular age groups (which engages the indirect age discrimination provisions) are justified and lawful only if the treatment is a ‘proportionate means of achieving a legitimate aim’⁵ or if the treatment fits into a specifically prescribed exception to the prohibition on age-differential treatment.⁶

Measures are only proportionate when they pursue a legitimate aim, are necessary to achieve that aim and do not impose burdens or cause harms to other legitimate interests that outweigh the objectives achieved.⁷ This proportionality assessment requires courts and tribunals (and anyone else seeking to determine the lawfulness of treatment subject to the proportionality test) to engage with and choose between competing moral interests and principles at stake.⁸ In other words, the proportionality test distinguishes between justified age-differential treatment, which is lawful, from unjustified age-differential treatment, which is unlawful. To make this distinction, courts and tribunals should engage with theoretical questions about the principles that determine when it is unjustified to treat people less favourably on the grounds of age and when it is unjustified to disadvantage particular age groups.

The aim of this book is to construct a comprehensive theory of age discrimination that can support this process. This theory consists of a framework of principles that assist in determining whether an impugned measure pursues a legitimate aim and whether such a measure adopts an appropriate balance between the competing interests at stake. I construct this theory of age discrimination by outlining substantive anti-discrimination and equality principles that both fit and justify our moral intuitions about different forms of discrimination and inequality. I then verify the extent to which these principles explain age discrimination and, in doing so, form a theory of age discrimination that can distinguish justified from unjustified age-differential treatment. This book has both a theoretical and a legal purpose. It aims to clarify age discrimination as a moral problem and to use this work to create a moral framework that can assist in applying age discrimination law.

I argue that in applying this theory of age discrimination, courts and tribunals should also be aware of the need to follow legal precedent and to show deference to the original decision-maker where the original decision-maker is better placed to determine proportionality.⁹

I.Age as a Protected Characteristic

The Equality Act 2010 prohibits discrimination on the grounds of nine protected characteristics: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.¹⁰ This book focuses on one of the nine, age. There are a number of reasons for this focus. First, age discrimination is an under-theorised area. There is detailed theoretical work on discrimination law in the literature,¹¹ but relatively little application of these ideas to the topic of age discrimination.¹² There is an important opportunity to consider the extensive philosophical literature on the morality of discrimination and to determine the implications this has for applying age discrimination laws. The UK case law has not to date provided a rigorous account of the morality of age discrimination when applying age discrimination laws, which furthers the importance of this book’s project.¹³

Secondly, there is increasing political focus on the fairest way to balance the interests of different age groups, including the recent establishment of political think tanks focused on intergenerational fairness¹⁴ and increasing focus of parliamentary debates and reports on the topic,¹⁵ and therefore there is an important opportunity for this book to make a significant contribution to this debate by offering a principled framework for balancing the interests at stake in age and ageing issues.

Thirdly, it is important to focus on age as a protected characteristic because the age provisions of the Equality Act 2010 have a different legal framework to the provisions relating to other protected characteristics, which requires that we focus on age discrimination as a separate topic. For example, the Equality Act 2010 provides that direct age-differential treatment is lawful and justified when it is a ‘proportionate means of achieving a legitimate aim’ while unequal treatment on the grounds of other protected characteristics, including race and sex, is lawful in much more restricted circumstances,¹⁶ including when the treatment is a genuine occupational requirement or if the treatment fits in the positive action criteria.¹⁷ These different legal frameworks imply that something is different about age that warrants this different legal structure. The theory of age discrimination outlined in this book has an important role to verify whether and, if so, why age discrimination is different, and to explain the impact this should have for applying age discrimination law.¹⁸

II.The Value of a Theory of Age Discrimination

There are a number of benefits to constructing a theory of discrimination to guide age discrimination law. Most notably, it can improve legal reasoning in age discrimination disputes by articulating the relevant principles and competing interests at stake. Without a comprehensive theory of age discrimination, it is easy for courts and tribunals to overlook important moral considerations or to make assumptions about other forms of discrimination and apply those assumptions to age issues.

A theory of age discrimination can ensure courts and tribunals have a greater grasp of the moral issues of age discrimination by offering a framework to approach these issues. Age discrimination is morally complex. There are many age issues that provoke controversial and difficult moral dilemmas. For example, there are questions about whether it is it justified to help the disadvantaged young if this means diverting resources away from older people; questions about when is it justified to use age distinctions to further business interests; or questions relating to distribution of healthcare, for example, whether the state should use age to distribute healthcare if this is more efficient than other methods. It is difficult to find satisfactory answers to these dilemmas without a theory of age discrimination. Furthermore, it is improbable that a court or tribunal will be able to consider all the interests and moral requirements at stake without some guidance.

The pluralist theory of age discrimination also provides for greater transparency in legal judgments by requiring courts and tribunals to articulate all the relevant principles that are at stake in a case and to require courts and tribunals to make judgments founded on sound principles. This enhances accountability by ensuring that it is possible to criticise the legal reasoning.¹⁹ As I explain in chapter two, the courts and tribunals have been approaching age discrimination cases without a comprehensive theory of age discrimination, and therefore the reasons and principles for deciding cases have remained opaque and difficult to critique.²⁰

The pluralist theory of age discrimination can also help non-lawyers determine whether measures are justified and therefore lawful. For example, employers can use the theory to consider whether their recruitment practices and redundancy policies can be justified. In addition, employees can use the theory to help determine whether their employer’s actions are justified and lawful.

Furthermore, the theory of age discrimination can enhance the legitimacy of age discrimination law by ensuring that courts and tribunals can apply the law in a way that is sensitive to principles of justice.²¹ Law is inherently an act of coercion. To have moral legitimacy, the law must justify this coercion. We can promote the legitimacy of the law by ensuring that those enforcing the law are guided by principles that justify reasons for having the law in question. The pluralist theory of age discrimination can do this by directing courts and tribunals to apply age discrimination law in a way that supports the point of having age discrimination law.²²

III.Rejecting Unitary Theories of Discrimination

In constructing a theory capable of guiding age discrimination law, we must identify the justifying aims of this law. In other words, we must identify when and why discrimination wrongs people and the principles that explain how the law can address these wrongs.

Academics have argued for various principles that explain the justifying reasons for discrimination law.²³ A common approach has been to provide a norm that can work to explain all the reasons why we have such a law. There is no consensus, however, on which norm should prevail as a foundation of discrimination law and some theorists have doubted that a single norm can provide a complete explanation.²⁴

The literature on the subject has advanced a number of principles, including equality, autonomy and respect, that individually provide a foundation for explaining how and why discrimination wrongs people and therefore can explain the justifying purpose of discrimination law. On the equality account, for example, Segall has argued that discrimination wrongs people when it places the discriminatee at a disadvantage because of a trait that a person should not be held responsible for.²⁵ Discrimination law, on this account, has a justifying aim of promoting equality of opportunity. Another account holds that discrimination is wrong when it has the effect of harming the capacity of people to live autonomous lives. Khaitan, for example, has argued that discrimination law is primarily concerned not with equality, but with attempting to create valuable opportunities for disadvantaged social groups.²⁶ The respect account holds that discrimination is wrong when it demeans people. Discrimina...