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Abstract

In performing its role of civilizing a society, the law reflects, promotes, and helps to shape social attitudes

and values. First, it reflects and embodies prevailing social attitudes by codifying or enshrining them with a

formal, official, and enforceable status. Second, the law promotes social values by enforcing its provisions,

ultimately through the threat of or use of force, if necessary. Third, the law helps to shape social values by

acting as educator; sometimes people who are forced, under penalty of law , to behave in particular ways

undergo a reluctant attitude transformation as a result and -- in spite of themselves -- internalize the norms

undergirding a particular law . This article focuses on a (limited) cross-national comparison of laws

pertaining to age discrimination in employment in order to gain insight into the attitudes and values of

nations regarding aging and the status of their elderly populations.

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Headnote

A cross-national comparison of laws pertaining to age discrimination in employment provides insight into

nations' attitudes and values about aging and the status of their elder populations.

American citizens who are employed by a U.S.-owned or -controlled company continue to be covered by U.S.

anti- discrimination laws while working overseas. Laws of the host country, international law , applicable

labor agreements and voluntary codes of corporate conduct may also protect them (Lowe, 2009).

By contrast to the almost five decades-long history of U.S. legislation against age discrimination in

employment, most international human rights instruments, including the International Labour Organization's

fundamental anti- discrimination instruments, conventions No. 100 and 111, do not explicitly list age as a

prohibited basis for differential treatment (Bisom-Rapp, Frazer, and Sargeant, 2011).

Europe is a relatively late entrant in addressing age discrimination . Just two of the twentyseven European

Union (EU) states, Finland and Portugal, prohibit age discrimination in their constitutions. Only in November

2000 did the EU adopt the Framework Directive on Equal Treatment in Employment and Occupation, Council

Directive 2000/78/EC, acknowledging the problem of age discrimination by building on Article 19 of the

1998 Treaty on the Functioning of the European Union. Prior to this Directive, which was driven by specific

demographic and economic pressures in Europe favoring the retention of older persons in the workforce

(Lahey, 2010), few jurisdictions other than the United States had robust laws banning age discrimination in

employment. One of those countries was Australia, where a federal Age Discrimination Act had been

Sociological Abstracts Looking at Age Discrimination Laws Through a Global Lens Kapp, Marshall B. Generations; San Francisco  Vol. 37, Iss. 1,  (Spring 2013): 70-75.

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enacted in 2004 (MacDermott, 2011). Another was Canada, which created the Canadian Human Rights Act

in 1985. (Paradoxically, though, the Canadian Employment Equity Act of 1995 does not address age

discrimination .)

The objectives of the EU Directive included "the need to take appropriate action for the social and economic

integration of elderly and disabled people." Referring to the Employment Guidelines of the European Council

(EC), the Directive also refers to "the need to pay particular attention to supporting older workers, in order to

increase their participation in the labour force."

The Framework Directive required each member nation of the EU to enact age discrimination laws

implementing the Directive by December 2006 (although they were only given until 2003 to design

legislation outlawing other forms of discrimination ). Individual EU countries have reacted to the EU's

Framework Directive with varying degrees of vigor, and not without some controversy (Palmore, 2006).

Because of this, age discrimination laws differ significantly across jurisdictions, and often differ from the

same country's anti- discrimination laws pertaining to gender, race, and religion (Lahey, 2010).

Until October 1, 2006, the U.K. did not enforce the Employment Equality (Age) Regulations promulgated by

the Department of Trade and Industry to replace the previous Voluntary Code of Practice (Meenan and

Broadbent, 2007).

In Poland, implementation of Community law (namely the Council Framework Directive) in 2004

complemented protections guaranteed (in theory) by the age-equality principle commentators and some

courts had read into Article 32 of the Polish constitution (Zysk, 2006).

In 2003, Italy strengthened its age antidiscrimination protections by enacting Legislative Decree No. 216,

amending the Worker Statute (Fois, 2010).

Finland, in 2004, passed a new Non- Discrimination Act; in the same year, Ireland amended its Employment

Equality Act; in 2007, Belgium instituted its Anti- Discrimination Act; and in 2005, Spain updated its laws . In

addition, EU members Bulgaria, Denmark, Hungary, the Netherlands, Portugal, Romania, Austria, Cyprus,

Germany, Greece, Luxembourg, Malta, Slovakia, and Sweden also formulated and implemented age-

discrimination provisions to comply with the Framework Directive (Lahey, 2010).

Who do age- discrimination -in-employment laws protect?

Examining which cohort national laws protect against age discrimination in employment reveals cultural

differences about age and the status of older persons. In the United States, the ADEA protects only potential

or actual workers older than age 40. Younger workers are not protected (General Dynamics Land Systems v.

Cline, 2004). This approach represents a policy judgment at the federal level that older individuals are

especially vulnerable in the employment arena and therefore need extra protection (but some state and

municipal anti- discrimination statutes reject that judgment and extend protections to younger as well as

older persons in the workplace). Moreover, the ADEA expressly omits from its protections persons elected to

public office, the personal staffof elected officials, elected officials' appointees on the policy-making level,

and their immediate advisors. Furthermore, because the ADEA protects only "employees," individuals who

are considered owners or partners of a business are not covered.

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By contrast, laws in a number of countries prohibit discrimination in employment on the basis of age,

without setting a minimum-age floor, and hence do not grant the older group special protection at the

expense of the younger. Moreover, laws on age discrimination in employment from other countries

generally apply to all workers, without the exceptions embedded in the ADEA. Laws protecting everyone,

rather than just select groups, represent a broader cultural value that age discrimination per se is the wrong

to be prevented, rather than discrimination that uniquely jeopardizes certain older job applicants and

workers.

EC Directive 2000/78 does not target discrimination against older applicants or workers alone.

Jurisdictions that have purposefully enacted age-blind, rather than age-preferential, anti- discrimination

provisions include the U.K., Canada, and Australia. The British and Australian statutes cover virtually all

employees, including contract workers, public office holders, those working for small as well as large firms,

and (unlike the ADEA) apply with full force to public safety workers.

Direct versus indirect discrimination

In the United States, the ADEA prohibits regulated entities from engaging in direct discrimination on the

basis of a job applicant's or employee's advanced age. In addition, the ADEA also forbids indirect

discrimination , which is conduct that has the incidental effect or result of producing a disparate impact on

the protected class of persons (Smith v. City of Jackson, 2005). This approach to defining prohibited

discrimination is consistent with that embodied in Title VII of the Civil Rights Act of 1964, which recognizes

claims for disparate impact regarding race, color, religion, sex, or national origin.

However, the Supreme Court has interpreted the ADEA more narrowly than the Civil Rights Act in this

respect, by requiring an ADEA claimant who relies upon a disparate impact theory to plead and prove that

specific tests, requirements, or practices instituted by the employer resulted in the disparate,

disadvantaging impact on older persons as a group. Demanding disparate impact proof has significantly

limited the practical reach of the ADEA in protecting the welfare of older potential and actual workers,

especially because disparate treatment (age-related discriminatory intent) on an employer's part is very

difficult to prove.

In a number of other countries, the practical reach of national age anti- discrimination in employment laws

is broader than in the United States because the disparate impact theory has been recognized more

liberally. As explained cogently by one commentator:

As the Constitutional Court of South Africa put it in The City Council of Pretoria v. Walker (1998), 'The

inclusion of both direct and indirect discrimination within the ambit of the prohibition ... evinces a concern

for the consequences rather than the form of conduct.' In other words, both direct and indirect

discrimination in the United Kingdom (and often in other jurisdictions too) share the same theoretical

underpinning. This is a rights-based approach: every person simply has the right not to be subjected to

unjustified discrimination (Kaye, 2009, p. 80).

Similarly, Section 15(1) of Australia's Age Discrimination Act provides that actionable indirect

discrimination occurs when "the [employer's] condition, requirement or practice has, or is likely to have, the

effect of disadvantaging persons of the same age as the aggrieved person."

Mandatory retirement

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One of the distinguishing purposes and features of the ADEA is to prohibit (with limited exceptions for

employees in certain executive or high policy-making positions, as well as firefighters and law enforcement

officers) employers from adopting and enforcing mandatory retirement (termination) policies on the basis of

an employee's chronological age. In this regard, the United States provides more protection for older

individuals than do many other countries, in which mandatory retirement persists amid little public

opposition (Dowling, 2009).

EU Directive 2000/78 allows member states to specify permissible mandatory retirement ages, and the EU

Court of Justice, in cases from Spain and the U.K., condone this allowance. The permissible mandatory

retirement age for many EU member countries is 65 (Lahey, 2010). In the U.K., the Employment Equality

(Age) Regulations explicitly permit employers to set a default retirement age of 65 or older. The Canadian

Human Rights Act does not specify a default retirement age, but permits "employment to be refused or

terminated if the individual has reached the maximum age that applies to that employment by law or under

regulations or is the 'normal' age of retirement for employees working in similar positions, though some

provinces-most recently Ontario in 2006- have abolished compulsory retirement" (Filinson, 2008, p. 230).

Several exceptions exist. Ireland removed its age limit in 2004, and Cyprus permits employers to set age 63

as a mandatory retirement age. Australia had abolished compulsory retirement prior to instituting its 2004

Age Discrimination Act; state legislation in New South Wales (Australia) offers older workers additional

protection against compulsory retirement (Field and Sappideen, 2009).

Lessons from Cross-National Observations

What lessons may be drawn from this very brief look at legal approaches adopted by several countries to

address the widespread (at least in the industrialized parts of the globe) problem of age discrimination in

the workplace? What does the content of any nation's laws regarding age discrimination in employment

reveal about that society's attitudes concerning aging and the status of older persons? Although we would

like definitive answers, the lessons are largely muddled, both within and across societies. Even within any

single society, attitudes about aging and the aged have long been complicated and multi-sided (Schuck,

1979).

On one hand, policy makers and the public may believe, and the laws may reflect, embody, and shape the

concept that age and aging are irrelevant and older persons are robust and self-reliant, just like the rest of

the population. Under this view, the law 's content should focus on assuring older individuals equal

treatment and protection against unfairness. This philosophy ordinarily gets translated legally into a liberty

or negative right-the right of the independent, autonomous older individual to be protected against

unwanted and external interference or unequal treatment. Antidiscrimination laws pertaining to age and

employment that protect all job applicants and workers regardless of either advanced or younger years, as

well as legal provisions banning or limiting employers' mandatory retirement policies and practices based

solely on the worker's number of years lived, are consistent with this philosophy. Anti- discrimination laws

protecting older applicants and workers from employer practices that exert a disparate impact on them, in

addition to condemning disparate treatment, represent an especially strong version of the equality principle.

Conversely, we may think of older persons as an identifiable group unique in some pertinent manner-

vulnerability, dependency, and neediness- that justifies special or preferential treatment. The outcome of this

way of thinking is to create or recognize entitlements or claims for benefits that may be enforced by an

individual solely by virtue of his or her membership in a designated age category. Age anti- discrimination in

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employment laws such as the ADEA that only protect people over a certain age, in effect allowing (or even

compelling) members of one age cohort to receive special privileges compared to members of other age

groups, fit within this "allocative" (Schuck, 1979) rights model. At the same time, laws condoning

mandatory retirement policies and practices appear to fly in the face of both equality and allocative models,

neither protecting older workers against disparate treatment nor providing them special privileges.

Increasingly, the phenomenon of population aging implicates a constellation of common issues globally, as

well as issues that affect countries in unique ways. Even when different countries confront common issues,

how those challenges are dealt with depends heavily on the nation's cultural, social, historical, and political

forces. These often diverse forces, and the respective national attitudes they reflect about aging and older

persons, are prominently on display when we examine how a variety of places around the globe now use

their legal systems to address the challenge of workplace ageism.

Sidebar

Most international human rights instruments do not list age as a prohibited basis for differential treatment.

Sidebar

Laws condoning mandatory retirement policies and practices neither protect older workers against

disparate treatment nor give them special privileges.

References

References

Bisom-Rapp, S., Frazer, A., and Sargeant, M. 2011. "Decent Work, Older Workers and Vulnerability in the

Economic Recession: A Comparative Study of Australia, the United Kingdom, and the United States."

Employee Rights and Employment Policy Journal 15(1): 43-121.

Dennis, H., and Thomas, K. 2007. "Ageism in the Workplace." Generations 31(1): 84-9.

Doron, I., and Apter, I. 2010. "The Debate Around the Need for an International Convention on the Rights of

Older Persons." The Gerontologist 50(5): 586-93.

Dowling, D. C., Jr. 2009. "International HR Best Practice Tips: Toward a Functional Cross- Border Age-

Discrimination Policy." International HR Journal 18(2): Article 1.

Eglit, H. 2009. "Age Bias in the American Workplace-An Overview." Journal of International Aging Law &

Policy 3: 99-167.

Field, S., and Sappideen, C. 2009. "Anti- Discrimination -Some Observations from Downunder, the Australian

Experience on Age Discrimination ." Journal of International Aging Law & Policy 3: 169-85.

Filinson, R. 2008. "Age Discrimination Legislation in the U.K.: A Comparative and Gerontological Analysis."

23(3): 225-37.

Fois, E. 2010. "Age Discrimination , Europe and Italy." Journal of International Aging Law & Policy 4: 1-31.

General Dynamics Land Systems v. Cline. 2004. 540 U.S. 581.

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Kapp, M. B. 2005. "Social Values and Older Persons: The Role of the Law ." Marquette Elder's Advisor 7(1):

69-81.

Kaye, T. S. 2009. "Divided by a Common Language: Why the British Adoption of the American Anti-

Discrimination Model Did Not Lead to an Identical Approach to Age Discrimination Law ." Journal of

International Aging Law & Policy 3: 17-97.

Lahey, J. N. 2010. "International Comparison of Age Discrimination Laws ." Research on Aging 32(6): 679-

97.

Lowe, D. A. 2009. "Enforcing the Employment Rights of American Workers Abroad." GP Solo (American Bar

Association) 26(6): p. 40. americanbar.org/newsletter/ publications/gp_solo_magazine_

home/gp_solo_magazine_index/ 2009_sept_labor.html. January 9, 2013.

MacDermott, T. 2011. "Challenging Age Discrimination in Australian Workplaces: From Anti- Discrimination

Legislation to Industrial Regulation." University of New South Wales Law Journal 34(1): 182-210.

Meenan, H., and Broadbent, G. 2007. " Law , Ageing and Policy in the United Kingdom." Journal of

International Aging Law & Policy 2: 69-102.

Palmore, E. B. 2006. "Is Age Discrimination Bad?" The Gerontologist 46(6): 848-50.

Schuck, P. 1979. "The Graying of Civil Rights Law ." Yale Law Journal 89: 27-93.

Smith v. City of Jackson. 2005. 544 U.S. 228.

The City Council of Pretoria v. Walker. 1998. 3 S.A. 24 at ¶ 31.

Zysk, M. 2006. "Age Discrimination Law in a Country with a Communist History." European Law Journal

12(3): 371-402.

AuthorAffiliation

In performing its role of civilizing a society, the law reflects, promotes, and helps to shape social attitudes

and values. First, it reflects and embodies prevailing social attitudes by codifying or enshrining them with a

formal, official, and enforceable status. Second, the law promotes social values by enforcing its provisions,

ultimately through the threat of or use of force, if necessary. Third, the law helps to shape social values by

acting as educator; sometimes people who are forced, under penalty of law , to behave in particular ways

undergo a reluctant attitude transformation as a result and-in spite of themselves-internalize the norms

undergirding a particular law (Kapp, 2005).

Now there is an "increased awareness of the legal consequences of global aging" (Doron and Apter, 2010).

One area of substantial legal activity in many countries regarding older persons is protection against

discrimination . Discrimination on the basis of age may take place in housing, health and human services,

insurance, income security, consumer transactions, and many more contexts. The sphere of actual or

potential age discrimination that has drawn the most attention internationally is employment-particularly in

this age of global economics. This article focuses on a (limited) cross-national comparison of laws

pertaining to age discrimination in employment in order to gain insight into the attitudes and values of

nations regarding aging and the status of their elderly populations.

Looking at Age Discrimination Laws Through a Global Lens Kapp, Marshall B. Generations; San Francisco  Vol. 37, Iss. 1,  (Spring 2013): 70-75.

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Age Discrimination in Employment Laws

First we must ask whether or not a country legally protects employment-related rights by prohibiting or

restricting entities from engaging in employment-related discrimination on the basis of chronological age.

Given the continued prevalence of ageism in the workplace, including in the American workplace (Dennis

and Thomas, 2007; Eglit, 2009), most industrialized nations today protect individuals against employment

discrimination . But the details of how they go about it vary markedly (Filinson, 2008).

In the United States, the primary law pertaining to age discrimination in employment is the federal Age

Discrimination in Employment Act (ADEA) passed by Congress in 1967, codified at 29 U.S.C. [United States

Code] §§ 621-634, with implementing regulations published at 29 C.F.R. [Code of Federal Regulations] §

1625. An important part of the legislative history of the ADEA is that Congress, three years earlier, had

enacted the Civil Rights Act of 1964, which primarily addressed discrimination on the basis of race.

In enacting the ADEA as an extension of that historical groundbreaker, Congress expressly intended "to

promote employment of older persons based on their ability rather than age; to prohibit arbitrary age

discrimination in employment; [and] to help employers and workers find ways of meeting problems arising

from the impact of age on employment." The ADEA's restrictions against age discrimination apply to

employers with twenty or more employees (some state and municipal laws include smaller employers),

employment agencies, labor organizations, and state and local governments. The law 's restrictions pertain

to discrimination on the basis of age in hiring, discharge, compensation, and other aspects of the terms and

conditions of employment.

AuthorAffiliation

Marshall B. Kapp, J.D., M.P.H., is director, Florida State University Center for Innovative Collaboration in

Medicine and Law , and faculty affiliate, Florida State University Claude Pepper Institute, Tallahassee,

Florida. He can be contacted at marshall. [email protected].

Copyright American Society on Aging Spring 2013

Tennessee Electronic Library

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