Prohibiting Age Discrimination in Getting Equal Employment Opportunities

Although legislation to ban many such practices of this kind is in prospect in a number of European countries, there is no consensus on its advisability or its content. Employers fear aware of litigation and are concerned about new obligations of record keeping, individual capacity assessment, performance evaluation and legal defence, burdens which are thought to be especially onerous for small firms. Many people believe that the use of age as a criterion for various job-related decisions is not necessarily unjustified or illegitimate. Age limits are often regarded as linked to qualifications for certain jobs, particularly those which require high levels of physical fit- ness. Ideas about appropriate age patterns tend to be widely and some- times rigidly held: entry-level jobs or apprenticeships are for the young; mid-level jobs are for the middle-aged; training is not worthwhile for older employees because they will soon retire. The notion that older people should give way to the young is deeply rooted. In times of unemployment or in cases of redundancy, many people—often including trade unionists and seniors themselves — feel that priority for jobs should be given to the younger generation over those old enough to obtain pensions or other benefits.

Views such as these will certainly influence the debate over any proposed legislation. Some issues will be extremely controversial. Should small enterprises be exempted? The US Age Discrimination in Employment Act does not apply to private employers with fewer than 20 employees. What exceptions should be permitted? The United States and other countries that have age discrimination legislation do leave room for age criteria when they represent a bona fide occupational qualification or requirement. How should such an exception be defined and how strictly should it be interpreted? Jobs in which physical fitness and sharp reflexes are necessary and which involve grave safety risks — such as those of firefighters, airline pilots and long-distance bus drivers—are often exempted. But be- yond such cases, is it legitimate to use age as a proxy for fitness and health? In intellectual or highly technical work, is it reasonable to assume that older people are not at the cutting edge of research and technology?

The principal controversy will be over mandatory retirement. In most countries, requiring employees to retire at a fixed age is a well-entrenched practice and is not considered discriminatory, especially if that age corresponds to eligibility for a pension. It may be common sense that individuals do not lose their skills or ability when they reach a particular birthday. But to many people, obliging everyone to leave at a certain age is less subjective and inequitable than making judgments about who can stay and who must go.

Mandatory retirement is widely regarded as a necessary tool to create employment opportunities for new arrivals on the labour market, to open up promotion possibilities and to enable enterprises or organizations to rejuvenate. The higher cost of older workers are less productive, particularly where salary scales are essentially based on seniority, is often given as a reason why mandatory retirement should be maintained. Regulations governing termination of employment which restrict the possibility of dismissal, or the practical and psychological difficulty of firing workers, are another frequently cited reason.

Issues such as these needs to be thoroughly examined and discussed in the employment, labour relations and cultural context of each country. This is not a reason for delaying the adoption of laws prohibiting age discrimination in employment. The principle of equality of opportunity is now firmly implanted in most societies: it is out of tune to continue tolerating overt discrimination against people because of their age. Although other kinds of discrimination no doubt persist, they tend to be less egregious: it would be shocking to see job advertisements excluding candidates on the basis of race or sex or to see such characteristics openly used as criteria for termination.

This is not to claim that legislation will suffice to eliminate discrimination. Most discrimination on any ground nowadays is indirect or hidden. Age discrimination is particularly hard to come to grips with because so much of it is inadvertent, unconscious or simply not deemed discrimination in the first place. Cases of alleged discrimination, particularly in recruitment, are notoriously difficult to prove. Unless concrete acts or statements can be cited or unless a clear pattern can be identified, it is often hard to say whether a particular decision is or is not discriminatory.

Nor can it be claimed that prohibiting discrimination will necessarily lead to an increase in the labour force participation of older people. Bearing in mind that much existing legislation is relatively recent; the limited experience with it shows no correlation one way or the other with participation rates. The primary objective of anti-discrimination laws is not directly to in- crease economic activity but to foster greater equality of opportunity. But banning discrimination will be a key step towards correcting the anomaly that, at the same time as the economic importance of increasing the employment of older people is being affirmed; practices that exclude them from the start are still accepted.

What legislation can do is stimulate or reinforce the process of change in at least three ways.

Most concretely, making age discrimination unlawful would offer some degree of protection against the most blatant practices—of which newspaper advertisements are an obvious example but by no means the only one —that stand in the way of older people seeking jobs and render them particularly vulnerable to job loss. The law is a deterrent. It will make deliberate or conscious discrimination more difficult and potentially costly. A legal framework would give the public authorities a basis for intervening, preferably through mediation or conciliation but, as a last resort, through enforcement or litigation. For the individual job applicant or employee, legislation will open the possibility of some kind of recourse against allegedly discriminatory decisions. If the legal prescriptions are sufficiently clear and are complemented by reliable information, the likelihood of inadvertent discrimination will be reduced. Many companies will institute measures — application forms not asking date of birth, separation or redundancy policies not linked to age, individual assessment instead of arbitrary age limits, bias-cleared computer programs, and instructions and training for personnel officers and managers — aimed at minimizing the risk of discriminatory actions that would render the employer liable. The possibility of evasion and indirect discrimination may remain but the first line of obstacles will be breached.

Legislation will have the further effect of giving substance, backing and strength to voluntary guidelines, codes of practice and educational campaigns. Such measures play a valuable role in building awareness and sensitivity, disseminating information and giving practical advice. Their persuasive power will be all the stronger if their main recommendations are not just expressions of opinion but aids in complying with legal requirements. Without the law behind them, potentially useful initiatives could easily remain within the realm of good intentions.

Finally, the enactment of a law will send a powerful signal that age discrimination is wrong. This may seem a rather vague achievement but it could be the most important. For decades older people have been receiving a clear message that they are not wanted on the labour market. Employers in most countries have received little indication, and certainly no firm and authoritative guidance, from governments that, save in exceptional cases, decisions on recruitment, termination and various other employment matters should not be based on age criteria. If anything, when it comes to workforce reductions, governments have been sending or endorsing the opposite message. It is sometimes argued that the law cannot change attitudes. But experience with the legal prohibition of discrimination based on race, sex and other grounds has shown that the law can change behavior: when the resulting experience demonstrates that preconceptions and prejudices are without foundation, changes in attitude will follow. The law is a set of obligations; it is also a statement of public policy. Older men and women are entitled to a clear statement that age discrimination is no more reasonable in modern society than racial or sex discrimination