Age Discrimination

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 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:

1. Direct age discrimination

2. Indirect age discrimination

3. Harassment

4. 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.

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.

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.

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.

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:

• Age

• Race

• Gender

• Sex

• Disability

• Sexual orientation

• Religious beliefs

• Marriage or civil partnership

• Pregnancy and maternity

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’.

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:

1. Employment planning

2. Training requirements of a position

3. Rewarding loyalty

4. Need for a reasonable period before retirement

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 21^st 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

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.