Have you ever heard someone being made fun of for being too old, or perhaps too young, to do something? Have you heard your parents or older friends discussing a situation where someone they know wasn't hired for a particular position, as they were deemed too old?
If yes, that is age discrimination in action.
- In this explanation, we'll look at age discrimination - its definition, types, and examples.
- We will also look at some statutes around the world that deal with age discrimination, and understand when it may be legal to discriminate on the basis of age in some situations.
- We'll briefly explore the Age Discrimination in Employment Act.
- We will also look at the repercussions of illegal age discrimination, the crucial relationship between age discrimination and employment, as well as a starting point for preventing age discrimination in the workplace.
What is age discrimination?
Let's take a look at the definition, types, and examples of age discrimination.
Definition of age discrimination
Discrimination is the unfair treatment of someone on the basis of certain personal characteristics, such as age, race, sex, gender, religious belief, or disability, among others. Accordingly, age discrimination, also called ageism, is when an individual is treated unfavourably due to their age.
Age discrimination is a form of discrimination where an individual is treated unfavourably due to their age.
Age discrimination facts
Here are some quick facts about age discrimination:
Ageist attitudes persist across multiple generations.
36% of people over the age 50s feel as if their age disadvantages them in the workplace (AgeUK, 2018)
There is a significant drop in treatments for people aged 70 and 75, for medical issues such as surgery, chemotherapy and talking therapy (AgeUK, 2018)
Age discrimination often happens both within hiring practices and on the job. However, elderly people often fail to protect themselves due to high levels of unawareness about laws against age discrimination.
Age is not a lone factor when it comes to discrimination - ethnicity and gender often intersect with age to create layered discriminatory experiences. For example, a White elderly man is more likely to secure work than a Black elderly woman.
Age discrimination examples
Age discrimination is broadly of four kinds:
Direct age discrimination
Indirect age discrimination
Harassment
Victimisation
Direct age discrimination
Direct age discrimination happens when someone is treated less favourably than another person in a similar situation because of their age.
This may happen in one of three ways.
Less favourable treatment towards someone because of their real age - for example, a person is refused the option to pursue a course of study while someone younger is allowed to pursue it.
Less favourable treatment towards someone because of their perceived age - for example, when someone is not allowed on a ride at a fair because they seem 'too old' for it.
Less favourable treatment towards someone because of someone else’s age (associate age discrimination) - for example, when an employee is not invited to a social event because her husband is much older than her, and would not be able to fit in with the other employees and their partners.
Direct age discrimination is permitted if the organisation or employer can prove that there is a valid reason for the discrimination. This is called objective justification.
Indirect age discrimination
Indirect age discrimination happens when an organisation or business has a policy or practice that applies to all workers, but is particularly disadvantageous for people of a certain age group.
If a law firm has a policy that an associate can be promoted only if they have five years’ experience, it can be disadvantageous for younger people as they are less likely to have the required experience. This is an example of indirect age discrimination.
Similar to direct age discrimination, indirect age discrimination is permitted if the organisation or employer can prove that it is valid and justified.
Age discrimination: Harassment
Harassment happens when a person is offended, shamed, or humiliated due to their age.
If an older person is called names or humiliated because they are unable to grasp the technicalities of new office software, that counts as harassment.
Unlike direct and indirect age discrimination, harassment cannot be justified. This allows an individual to complain against the harasser, although the organisation in which this happens may claim defence by saying that they tried everything to prevent people from behaving inappropriately.
Age discrimination: Victimisation
Victimisation happens when an employee suffers detrimental treatment because they make a complaint related to discrimination. A person can be victimised if they made the complaint for themselves, or on behalf of someone else.
If a colleague calls another person names due to their age, and you issue a complaint about this to your manager, it is considered victimisation if your manager treats you badly as well.
This idea of victimisation should not be confused with the criminological understanding of victimisation or victimology, which refers to the study of victims of crime.
Fig. 1 - Age discrimination happens when someone is discriminated against on the basis of their age
Age discrimination acts
There are multiple statutes that deal with age discrimination, in the workplace and elsewhere. Let us take a look at two such major statutes - The Equality Act 2010 in the United Kingdom, and The Age Discrimination in Employment Act 1967 in the United States.
Age discrimination: The Equality Act 2010
The Equality Act is a law that is meant to protect individuals from discrimination, in the workplace and otherwise, in wider society. It is an attempt to replace all previous anti-discrimination laws with a single Act. Such previous legislations include the Equal Pay Act 1970, the Employment Equality (Age) Regulations 2006, and the Equality Act 2006 (Part 2).
Age discrimination: Scope of the Equality Act
It applies to discrimination based on:
The Act covers a wide range of businesses and organisations under its ambit, such as places that provide goods and services (shops, hotels), organisations that employ people (during the application process as well as treatment in the workplace), health service bodies (local GP, hospitals, dentists), and public service bodies (local council services, transport bodies, housing associations).
The Equality Act provides that public bodies, including local authorities, hospitals, and police authorities have a positive duty to prevent discrimination. This is called the Public Sector Equality Duty.
When is age discrimination allowed under the Equality Act?
If the claimant can show that discrimination might have occurred, the burden of proof then shifts to the employer who committed the act to prove it did not discriminate.
The Equality Act allows age discrimination when it can be ‘objectively justified’. This means that the employer or organisation must provide a valid and proper reason for discriminating on the basis of someone’s age. To prove this, consistent, transparent and well-documented decisions are required. A form of discrimination will be objectively justified only when it has been adopted as a ‘proportionate means of achieving a legitimate aim’.
When a building company does not allow minors (aged below 18 years) to work on their construction sites because the work is inherently dangerous (and minors are more vulnerable), it is valid discrimination. This is because it constitutes a legitimate aim of ensuring the personal safety of minors.
The European Equal Treatment Framework Directive No. 2000/78, which makes age discrimination laws compulsory throughout the European Union, provides examples of possible legitimate aims:
Employment planning
Training requirements of a position
Rewarding loyalty
Need for a reasonable period before retirement
Note that, unlike direct and indirect age discrimination, harassment cannot be objectively justified under the Equality Act 2010.
The Age Discrimination in Employment Act 1967 (ADEA)
The ADEA is a labour law that disallows discrimination in the workplace against anyone aged 40 years or above in the USA. It specifically prohibits discrimination in hiring, promotion, wages, termination of employment, and layoffs while providing equal employment opportunities.
The ADEA applies to employers who employ at least twenty workers on a regular basis. Under the Act, remedies include compensatory damages for victims. However, it allows employers to use defences such as reasonable factors or good cause, similar to The Equality Act in the UK.
Preventing age discrimination in the workplace
No employee should be discriminated against because of their age, at any point in the employment process. It might be surprising to note that modern workplaces in the 21st century still discriminate against their employees, but it is very much a reality even now. Some common signs of age discrimination in the workplace are:
Learning opportunities and training courses are offered only to younger employees.
Older workers are often preferred over younger workers for challenging tasks or projects.
Older workers are left out of social events.
Younger workers are not allowed to leave work early because they don't have similar family commitments as older workers.
Unnecessary remarks can be made about age. These include jokes about retirement, technological incapability, or lack of knowledge.
As you can see, these are things we notice and accept in our everyday lives, but are often signs of age discrimination. The relationship between age discrimination and the workplace may be analysed based on the three major stages of employment: recruitment, during employment, and redundancy. We can also turn to these issues as a starting point for preventing age discrimination in the workplace.
Age discrimination and recruitment
Decisions on recruitment and selection of a candidate must be based on the candidate’s individual merit and competence, rather than on the candidate’s age.
Age discrimination and employment
Employers must protect their employees from age discrimination in every aspect of employment. This includes terms and conditions of their employment, opportunities provided, access to promotions and transfers, training and development opportunities, as well as just general treatment at the workplace and social events. This also includes the requirement that employers cannot operate a compulsory retirement policy unless they can objectively justify such a policy.
Fig. 2 - Employers must ensure that employees are protected from age discrimination while they work. Sometimes, this is done through T&Cs of the employer
Age discrimination and redundancy
Redundancy refers to a form of dismissal from one's job. It usually happens when employers need to reduce their workforce.
However, it is important that an employee is selected for redundancy fairly (i.e., due to their level of experience or capability to do the job). An employee cannot be made redundant because of factors such as their age, gender or disability, for example.
The age discrimination provisions of the Equality Act apply to the processes that an employer uses when they are selecting candidates for redundancy. Accordingly, the exception of objective justification also applies to this. Using age discrimination for redundancy may be legal if it is necessary to achieve a legitimate aim. Using the length of service as a criterion for redundancy, for instance, can be considered objectively justifiable, since newer employees may not have ample experience compared to employees who have been with the organisation for a longer period of time.
Remedies in cases of age discrimination
The remedies available for age discrimination depend on the country. Usually, compensatory damages are provided to the victims if it can be proven that there was no objective justification or good cause behind the discrimination. There is usually a time limit to raise a claim in front of the relevant authority, and a specific procedure to be followed.
In the UK, a redundancy-related age discrimination claim should be brought in front of an Employment Tribunal within three months of the discriminatory conduct. The procedure for the same has been laid down in the ACAS Code of Practice on Discipline and Grievance Procedures.
Age Discrimination - Key takeaways
Age discrimination is a form of discrimination when an individual is treated unfavourably due to their age.
Direct age discrimination happens when someone is treated less favourably than another person in a similar situation because of their age. Indirect age discrimination happens when an organisation or business has a policy or practice that applies to all workers, but is particularly disadvantageous for people of a certain age group.
Harassment happens when a person is offended, shamed, or humiliated due to their age. Victimisation happens when an employee suffers detrimental treatment because they make a complaint related to discrimination.
There are multiple legislations that deal with age discrimination, including the Equality Act (2010) in the UK, and the Age Discrimination in Employment Act (1967) in the USA.
Victims of age discrimination are usually provided compensatory damages for their suffering.
References
- AgeUK. (2018). Ageism and age equality. ageuk.org.uk
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