Age Discrimination in Employment

Malcolm Sargeant

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317183785
• Edition: 1
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

Increased life expectancy and an ageing workforce have highlighted the problem of age discrimination in developed countries. Malcolm Sargeant's Age Discrimination in Employment is an encyclopedic guide for HR specialists and employment lawyers to the nature of age discrimination in the workplace in a number of countries, along with a discussion of the main thrust of employment law in this area, including an analysis of the Employment Equality (Age) Regulations 2006. The book opens with a consideration of what age discrimination is and how it manifests itself at the workplace and elsewhere. It also breaks discrimination down by age (discrimination against young, middle, and senior age employees) and explores multiple discrimination, including age and gender, ethnicity, sexual orientation, and disability. An important reference for HR departments, policy-makers and others concerned with organizational culture and development, discrimination, and social policy.

CHAPTER 1 Age Discrimination

A feature of the Employment Equality (Age) Regulations 2006¹ is that they are not limited to one particular age group. Unlike, say, the Age Discrimination in Employment Act 1967 in the United States, they apply to all age groups and all perceived ages. It is likely, however, that most of the litigation will concern older workers who suffer discrimination. This is because firstly, they appear more likely to suffer from age discrimination and secondly, because the consequences of such discrimination are potentially more severe than for young workers. As will be shown here, the consequences of a person in their 50s losing a job are serious because it is likely that such a person will never be able to get back into the labour market at a comparable level. This is less likely to be the case with young workers, who have the opportunity of time to retrain and restart. This is not to underestimate the detrimental impact of age discrimination upon young or indeed other-age workers or to deny that it takes place. The age at which one can be viewed as an older worker can start as low as the 30s for women workers returning after a career break. Discrimination against all ages is considered in this book (see for example Chapter 4), but there is inevitably a concentration upon the issues surrounding older workers.

AGE DISCRIMINATION

Age discrimination has, of course, both an institutional and an individual perspective. A report by the Equality Authority of Ireland stated:

Ageism involves an interlinked combination of institutional practices, individual attitudes and relationships. Institutional practices in this context can be characterised by:

• the use of upper age limits to determine provision or participation;

• segregation where older people are not afforded real choices to remain within their communities;

• a failure to take account of the situation, experience or aspirations of older people when making decisions, and a failure to seek to ensure benefit to them as a result of an overemphasis on youth and youth culture; and

• inadequate provision casting older people as burdens or dependants.

Institutional practices can shape, and be shaped by, individual attitudes based on stereotypes of older people as dependent, in decline or marginal. Some of these practices can also have a detrimental impact on an older person’s sense of self worth.²

These are some institutional manifestations of age discrimination. To a degree they are based upon group stereotypes. Upper age limits are imposed for health care and for employment purposes, for example, because of assumptions that it is correct to treat older people less favourably than others, perhaps because of an idea that such people have outlived the useful part of their lives and that society should somehow allocate its resources to those that have something left to contribute. Older people may be segregated and regarded as a burden or a drain on the resources of the community. There is no attempt in these practices to differentiate one older person from another. Like all discrimination it can accept that there are exceptions to the general rule, but the general rule results in treatment relying upon an unacceptable criterion. In this case the criterion is the chronological age of the group. One of the arguments in this book is that this institutional discrimination continues in the European Union and the United Kingdom and it is, in part, actually legitimised by the Framework Directive on Equal Treatment and Employment³ and the Employment Equality (Age) Regulations 2006.

Individuals’ lives are defined by age:

Our lives are defined by ageing: the ages at which we can learn to drive, vote, have sex, buy a house, or retire, get a pension, travel by bus for free. More subtle are the implicit boundaries that curtail our lives: the safe age to have children, the experience needed to fill the boss’s role, the physical strength needed for some jobs. Society is continually making judgements about when you are too old for something – and when you are too old.⁴

One survey showed that some 59 per cent of respondents reported that they had been discriminated against on the basis of age during their careers.⁵ In a further survey, this time of retired trade union members, almost one-third claimed to have suffered age discrimination and one in 12 claimed to have been harassed for reasons connected to their chronological age.⁶ One of the respondents recounted this story:

I was a lecturer in journalism for over 11 years until I was forced to retire last year, despite having no wish to do so. I was told just before my 65^th birthday that I would be compulsorily retired at the end of the summer term.

The college, with its usual efficiency, left it too late to advertise for a replacement and they could not find a suitable applicant. At the eleventh hour, as desperation set in, I was asked to stay on. I was very happy to do so because I enjoyed my work and I was very efficient at my job.

I would have been content to carry on for another two or three years and I assumed that, having breached their strict code of retirement at 65, the college would be pleased for me to do so. However, in April last year I was informed that my job was again going to be advertised and I would be forced to retire when a replacement was found. I told the personnel department that it was unfair because they had been more than ready to ignore their mandatory retirement rule when it suited them. They refused and the job was advertised, again at a late hour, and this time they found a suitable candidate although this did not happen until three weeks before the end of the summer term, so I was kept in suspense until shortly before I was due to start my holidays.

There is a sense of frustration in this letter. An experienced and active individual is ejected from employment and almost discarded as a result of the application of a rule based upon a chronological age rather than the merits of the individual. One in three respondents to a further survey said that the over-70s were regarded as incompetent and incapable and that more people reported suffering age discrimination than any other form of discrimination.⁷ Sufficient surveys are reported on in this book to show that decisions are taken on the basis of an individual’s age, particularly in relation to employment. One way of reducing this discrimination is to make institutional discrimination unlawful in order to make individual discrimination unacceptable.

IS AGE DISCRIMINATION DIFFERENT?

Age discrimination might be different from other forms of discrimination because there is no discrete group that has its own membership. Everyone has some age⁸ and old age is a state that the majority of the population will reach at some time. As the US Supreme Court stated:

Old age does not define a ‘discrete and insular’ group…in need of ‘extraordinary protection from the majoritarian political process’. Instead, it marks a stage that each of us will reach if we live out our normal span.⁹

Age discrimination in employment is often portrayed as protecting older workers from being discriminated against in comparison to younger workers. Certainly this comparison is one aspect of such discrimination. In the United States it is only those who are aged over 40 who form a protected class. Those under this age level do not receive any protection from the Age Discrimination in Employment Act 1967 (see Chapter 6). Even in the United States, however, the distinction is not just between the young and the old. It might help a court to infer discrimination, but it is not conclusive. Discrimination on the basis of age can take place between two people within the protected class.¹⁰

A report by the Education and Employment Committee of the House of Commons¹¹ stated that age discrimination was a complicated issue. It was different to other forms of discrimination because, firstly, it could affect anyone, unlike other measures on sex, race and disability, and secondly, because it was also more difficult to identify than discrimination on other grounds. In the United Kingdom and indeed in the rest of the European Union, age discrimination regulation applies to workers of all age groups. Thus, young workers will be protected in the same way that older workers may be. Presumably a 20-year-old will be able to complain about their treatment in comparison to a 25-year-old as well as the more obvious 60-year-old comparing themselves to the treatment of a much younger worker. It seems likely, however, that it is the older worker who is more likely to suffer from discrimination on the grounds of their chronological age.¹²

The Government’s 1998 consultation document¹³ stated, at para 2.10:

It is hard to define age discrimination succinctly. The consultation made it clear that there can be both direct and indirect forms of age discrimination in employment. The most obvious forms are where people held strong, stereotypical views about a person’s capabilities to do a job or to be developed because of their age.

The Government’s consultation document did not try to identify discrete groups. Rather it considered the manifestations of discrimination as they affect large numbers of workers. The fault with this approach is that it fails to identify solutions which might be age specific. The solutions to discrimination against workers under the age of 21 might be different to those concerning discrimination against workers over 65 years of age. There is an implicit assumption in this book that there are identifiable groups against whom age discrimination takes place: these are younger workers and older workers. The issues are different as between discrimination against different groups as exemplified by one survey of young people (see Chapter 3) and their experiences of discrimination. This is particularly true when one considers the consequences of discrimination. For a young worker it can mean a failed job application or a missed promotion opportunity. For an older worker it can mean the end of their working life (see Chapter 4). It is a fault of EU and national policy that the statutory measures taken are blind to this difference.

In a comparative analysis of age discrimination in the European Community the following definitions were offered:

Direct discrimination: measures targeted at...