Questions and Emerging Answers on Age Discrimination

Who, Whom, When, How? Questions and Emerging Answers on Age Discrimination

Csilla Kollonay Lehoczky1

Age discrimination is a late child within the prohibited. No paper on racial or sex discrim- non-discrimination family. As such, it faces ination would start with such a concession. the advantages and disadvantages of being In spite of the clear “relationship”, the prohi- the youngest child in a large family. It gets bition of age discrimination cannot share the clear and undisputed status of race and sex born, but also gains from getting experience, in the family of grounds of discrimination, learning,less, never and sits inheriting at the elegant this and place that of from a first- its while it continues to be marked by ambiva- older siblings. lence in the law and jurisprudence. This article attempts to detect some of the conceptual Robert Neil Butler, a gerontologist, holds the reasons why age is different from its “older title of being the creator of the word “age- siblings”, on the basis that clear recognition ism”, which he used in his much quoted 1969 of some of the unique attributes of age dis- article to describe the widespread hostile crimination might facilitate a stabilisation of prejudice that he observed was faced by el- its place within the family. derly persons.2 The word clearly and sensi- bly expresses the similarity with “racism” The birth date of the notion of age discrimina- and “sexism”, associating “ageism” with the tion marks a key difference between it and its two most severe and outrageous forms of “older siblings”: it arrived too late (in the late historic discrimination. 20th and early 21st inclusion in the system of the post-World Lots of symptoms suggest that Butler was War II human rights Century) protection. to benefit Perhaps from right and at the same time over-optimistic it is not only a late, but also an “unwanted and over-ambitious, when suggesting that child”. Its conception is frequently explained the place of ageism was within the same box as being the result of the revolutionary de- as racism and sexism. One of these symp- mographic and economic changes which toms is the difference in the ways in which took place in the second half – especially the authors are writing on, and advocating for, last two decades – of the 20th Century and the elimination of age discrimination. Papers which necessitated appropriate legislation. often start by acknowledging that differential The “ageing population” syndrome resulted treatment on the grounds of age may some- in social and economic problems and the in- times serve a useful purpose, followed by the clusion of ageing persons in paid work and statement that “nonetheless” such differenti- taxation in order to preserve the long term ation might be based on incorrect presump- balance of the social security budget. These tions and prejudice and therefore should be realities, coupled with globalisation and de-

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mographic differences, above all, lie behind not be discussed, apart from occasional com- the increased interest for protecting the hu- ments regarding some general or basic is- man rights of older persons.3 sues of age discrimination.

Since this late child is still young, its genu- Part One explores the place of age discrimi- ine attributes have not yet entirely unfold- nation in the non-discrimination family, and ed. Frequently, the child has to wear clothes - considered by many less important than its sy and limping. siblings.tries to findPart anTwo explanation provides an as overview to why it of is and shoes that do not fit, thus it looks clum the personal scope of the protection in or- One of the unique attributes of age not yet der to see clearly the groups to be covered, properly explored is that age is not a static the subgroups and their attributes. This ar- but a dynamic attribute. It has a temporal ticle contends that the law should protect all dimension, a one-way, progressive and irre- persons from age discrimination, and should versible nature. This dynamic nature makes age discrimination substantially different age group. The one-way and progressive from race, sex, religion and even disability naturenot be of restricted ageing has to thoseto be “discovered” within a specific and discrimination and disregarding this attrib- henceforth old age and young age have to be ute might cause confusion in the protection distinguished as two separate protected at- of the aged. tributes. Part Three starts the mapping of the “material scope”, namely the protection of A second attribute of the prohibition of age the right to equal treatment in employment, discrimination is the almost inseparable presenting some features of the US ADEA. combination of the right to equal treatment Part Four discusses a separate issue of non- and the right to accommodation and assis- discrimination in employment: mandatory tance, both different forms of non-discrim- retirement – a controversial issue revealing ination; however, assistance is a relation- - ship that may imply or generate inequality hibition of age discrimination. Part Five pro- and therefore is, in the public mind, distin- videsthe difficulties a brief overview on the road of the to consistentpossibilities pro of guished from equality. The combination of protecting the elderly outside employment in the so called “fourth age”: when the right clearly addressed along the temporal line – to equal dignity necessitates positive meas- changethese two in specifictime – that attributes is a third demands and unique to be ures, the provision of social services, some- attribute of the personal and material scope times costly, provokes sharp questions about of the legal protection. what society means by equality and how equality is distributed. The brief summary - draws mainly on the relevant case law of the tual issues, in addition to looking at the main Revised European Social Charter (RESC). internationalThis article will instruments briefly discuss prohibiting these concep discrimination on the ground of age, and paying Part I: The Place of Age in the Hierarchy of - Protected Attributes garding non-discrimination in employment, theparticular United attention States Age to Discriminationthe first regulation in Em re- Age discrimination in the human rights world ployment Act (ADEA). The age discrimina- does not enjoy the same place and vigour as tion legislation of the European Union will

race or sex discrimination. Language reflects

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the mind. The occasional timid approach to - - sons in order to “protect” older or younger alence to the issue which is connected to its peoplea ground who for permittedare seen as classifications “vulnerable”, of or per in ageinformal discrimination lower status reflects in the the hierarchy overall ofambiv vari- order to “protect” the public from attributes ous prohibited discrimination grounds. Whilst associated with age (e.g. lower age limits for some may deny that there is a hierarchy and/ drivers’ licences or lower ages for certain oc- or that age has a lower status, considering the cupations).5 Such a protective approach is a reasons for its perceived low ranking might be further factor in the ambiguity surrounding useful when contemplating effective guaran- the application of age discrimination. tees of the equal rights of the elderly. In Europe, age is not included either in Ar- The late arrival and consequent lower rank ticle 14 of the Convention for the Protection is signalled primarily by the fact that interna- of Human Rights and Fundamental Free- tional conventions that set up the post-World doms (ECHR), or in Article E of the RESC.6 No War II human rights system did not include doubt, in principle the open-ended wording age into their catalogues of “suspect” classi- of the lists of discrimination grounds within these treaties permits the addition of fur- Human Rights (UDHR), nor the two main UN ther grounds.7 When listing the grounds treatiesfication. –Neither the International the Universal Covenant Declaration on Civil of upon which a person may be protected from and Political Rights (ICCPR) and the Interna- discrimination, the phrase starts with “such tional Covenant on Economic, Social and Cul- as” and ends with “other ground” or “other tural Rights (ICESCR), mention age in their status”, indicating that the list of enumer- catalogue of protected attributes.4 ated characteristics, including sex and race for example, is non-exhaustive. Thus, age The African Charter on Human and Peoples’ could be added through case law by the ad- Rights (ACHPR) adopted in 1981 is men- judication of compliance monitoring bodies. tioned in surveys of international treaties as But it is not. the exception, explicitly including the prohibition of discrimination on the ground of By the explicit inclusion or non-inclusion age. However, such reading of the Charter is in the given catalogue, these treaties clas- misleading. Article 18 of the ACHPR on the sify and thereby set up a hierarchy between “Protection of the Family and Vulnerable “suspect” and “non-suspect” grounds.8 The Groups” prohibits discrimination against distinction between “suspect” and “non- women, while the aged and the disabled are suspect” grounds almost naturally results in provided with “right to special measures of a differentiation of rigour in the application protection in keeping with their physical or of the prohibitions in general, and in the moral needs”. With the lack of clear distinc- case of age in particular. As states are grant- tion between protection by special measures ed a broader margin of appreciation and and prohibition of discrimination, such ref- respect, reluctance or uncertainty emerges erence, like the provision itself, rather un- regarding the inclusion of age among the derlines and contributes to the mixed and protected attributes. irresolute nature of age discrimination. As a result, age as a discriminatory distinc- Similarly to the ACHPR, when age is mention remains little discussed in the case tioned in international treaties, it is meant as law of adjudication bodies supervising

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the implementation of human rights trea- to adopt any social legislation, if they decide ties with cases more likely to be brought they are bound by Article 26, they must en- or decided on other grounds such as the sure that the law prohibits “any discrimina- gender of the applicants9 or, even, extend- tion and guarantee to all persons equal and ing the catalogue of prohibited grounds, on effective protection against discrimination grounds of sexual orientation in relation to on any ground such as race, colour, sex, lan- age-distinctive legislation.10 guage, religion, political or other opinion, national or social origin, property, birth or Further weakening the status of age-dis- other status”. crimination is the existing divide between civil and political rights on the one hand Relying on Article 26, the Committee found and social and economic rights on the oth- that Dutch legislation violated the rights er. The aged, or to put it more accurately, of Ms Brooks to old age benefits on equal the “elderly”, are protected predominantly footing with men. Even though the case by conventions on economic and social related to pension rights, it cannot be con- rights, whose hierarchical status is seen sidered as an extension of the prohibited by many as lower than that of civil and po- grounds to cover age, as the decision of the litical rights conventions, in contradiction Committee was based on sex discrimina- with the principles of universality and in- tion rather than age discrimination or the divisibility of human rights. pension rights of the elderly.13

The ECHR prohibits discrimination only in Moving from the international level to the respect of the enjoyment of the rights guar- federal and “quasi-federal” (supranational) anteed by the Convention. Social and em- level of the United States and the European ployment rights, where protection against Union, the hierarchy is more hidden, but age discrimination is the most relevant, re- nonetheless can be discovered and traced, main outside the material scope of civil and though less so in the US, where the issue political human rights and their equal rights of hierarchy gets minor attention. In both check. Protocol 12 to the ECHR which pro- legal systems, age is one of the grounds hibits discrimination in any context could which gained legal recognition later and is be a vehicle to bringing equality regarding separate from the classic grounds such as social rights within the scope of the ECHR. race, sex and religion. The US Civil Rights Act 1964 did not include age in its Title VII by a minority of member states.11 protecting groups subjected to historic, However, this Protocol has only been ratified egregious discrimination. At a short dis- The case of Brooks v Netherlands12 before the tance in time and spirit from the original UN Human Rights Committee was a prom- discrimination grounds, age discrimina- ising milestone case and a potential “pro- tion was addressed in 1967 in a separate moter” for the Protocol 12 idea in as much piece of legislation, the US Age Discrimi- as it extended the scope of equal treatment nation in Employment Act (ADEA).14 This to social and economic rights by declaring legislation, in spite of its strong reliance on that the state’s obligation to observe equal the wording of Title VII, has resulted in a treatment is not dependent on the subject different interpretation, with a slightly but matter of the legislation. Although sover- clearly lower level of scrutiny in compari- eign states are not obliged under the ICCPR son to race, sex or religion cases.

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At a longer distance in time from the original possible “ranking” or “levelling” of the hi- grounds of sex and nationality, EU legislation erarchy. It might also be telling that the addressed age discrimination in one of its issue of hierarchy is mainly discussed in pieces of legislation which separated race/ academic articles, when dealing with one ethnicity from the “other” new grounds and of the “newer” and perhaps “weaker” (or differed from sex or race discrimination in supposedly weaker) protected grounds, respect to the scope of application15 and the such as religion, sexual orientation and permitted exceptions.16 The distance in time disability. While the presence of a hierar- ultimately was an advantage with regard to chy, either in international human rights the content of the provisions. Sex and nation- law, or in EU anti-discrimination legisla- ality discrimination (“the oldest children” in tion, is seen as a fact, views diverge about the family) produced, over the years, a signif- its assessment. Some find it “worrisome”,21 icant amount of case law, eventually result- some have a neutral view,22 or see potential ing in sophisticated interpretations of the risks for certain “strands” both in treating prohibitions. This process has clearly helped the grounds as equal23 and in establishing shape the sound development of the new- a hierarchy.24 Dagmar Schiek, seeing prob- born concept of age discrimination.17 lems both in the current hierarchy under the Framework Directive and its planned The prohibition of age discrimination is in- legislative extension, makes a proposal for cluded in Directive 2000/73/EC of 27 No- a novel approach, a “heterarchical” instead vember 2000 (the Framework Directive) on of “hierarchical” system of organising the establishing a general framework for equal principle of non-discrimination around treatment in employment and occupation,18 “nodes”. In that system, age discrimination to combat certain types of discrimination is placed around the “node” of disability on “other” grounds,19 in addition to sex since age “often leads to a reduction in bod- and race (ethnic origin). The implied rank- ily functions and associated prejudice”.25 ing in the legislative instruments has been Since EU age discrimination legislation (ECJ, later CJEU). prohibits discrimination against the young, confirmed by the European Court of Justice just as it prohibits discrimination against The Charter of Fundamental Rights of the the elderly, this grouping raises serious European Union,20 which entered into force questions with regard to age discrimina- (in a limited sense) with the Lisbon Treaty tion: how the “lower end” of the age-scale in 2009, includes age in its list of 14 prohib- connects to the group of the disabled. At ited grounds of discrimination. Furthermore, the same time, this categorization ben- in Article 25, it recognises the rights of the eficially directs the limelight to one of the elderly (inserted between the rights of the principal issues for this article: whether child and the integration of persons with dis- the concept of age discrimination is a sym- abilities in Articles 24 and 26). metric, two-way model or can it reasonably and consistently guarantee protection if it The existence of a hierarchy within the is perceived as an asymmetric notion. prohibition on discrimination is not disputed in the analysis of EU anti-discrim- The next part will address the need for fur- ination legislation. On the other hand, opinions are divided about the impact and the prohibition of age discrimination. ther specification of the personal scope of

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Part II: Who Is Covered by Age Discrimi- to discriminatory treatment and needing nation Provisions? – Personal Scope of protection from age discrimination legisla- the Protection tion are the elderly, the upper age groups along the age-scale. Who should be protected by provisions on non-discrimination on the ground of age? 1. Protection of the Young with Respect to Within what limits should “young age” and their Age “old age” be recognised? These apparently simple questions receive sharply differing From time to time young persons are also answers from legislation, the courts and subject to discrimination either due to a real from academia. or presumed lack of physical, intellectual or moral maturity, or because of the lack of au- One of the reasons for the doubts regarding tonomy or autonomous responsibility. The the nature of the prohibition of age discrimi- public mind, as well as the prevailing socio- nation is rooted in the personal scope of the cultural attitudes and legal approaches, associate autonomy with “maturity”, at least at answers but also, and mainly, because of the the lower end of the age ladder; and maturity concept. Not only because of the conflicting- is measured by the number of years the per- tected, this class of persons is distinguished son has lived. fromspecific all groupother protected characteristics classes of in those the equal pro - Thus, identifying a person as young has - agerights discrimination world. Looking but may into also these help specifici clarify late their protection rather than their equal someties not concepts only helps of discriminationto confirm our onviews other on treatment.been used inEqual law firsttreatment and foremost is a secondary to regu grounds or discrimination in general. and scarcely regulated topic, not only in respect to children but also to young persons. Everyone has an age, be it young or old. The term “age discrimination” suggests prejudi- In international treaties, young age is sub- cial stereotyping and treating someone un- ject to regulation primarily with a protective favourably because of their age, regardless intention, setting minimal ages for activities of what that age is. Since such stereotyping that, at an early age, would be harmful for the and disparate treatment violates the dignity young person or would bring risk for others. of the person, age discrimination should be A clear example is provided by the prohi- prohibited against any age group. bition of child labour, the subject of a core convention and related legal instruments This conclusion is based on the false prem- of the International Labour Organisation ise that persons of any age belong to a cat- (ILO).26 Further, Article 10(3) of ICESCR not egory or group which shares characteristics only obliges state parties to prohibit child which can be the basis for their differential labour, but also requires national legisla- treatment. Evidently this is not the case. The tion to protect children from “economic and harms of negative stereotypes, such as pre- social exploitation”, i.e. from discriminatory sumed reduction of physical and intellectual wages and working conditions. Both the ILO - conventions and the ICESCR merely require tached to the upper age groups, the elderly. states to legislate on a minimum age limit Thus,capacities the category and growing of persons inflexibility, most exposed are at without specifying the acceptable minimum

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age. The RESC, in order to guarantee the ture is not a bipolarity; it is a continuum. right to special protection against the physi- In society it is made a bipolarity”, resulting cal and moral hazards for children and young in the unattainable requirement to be the persons, sets the minimum age for admis- same as others at the same pole, and set- sion to employment at 15 years,27 while the ting the standard pole in order to provide minimum age for admission to dangerous or for equality.33 unhealthy occupations is set at 18 years.28 Contrary to the binary nature of race, sex or Further, international treaties set a minimum other discriminations, here there is a one- age for a number of activities which impact way path that might connect the group of on other fundamental human rights (such the young and its comparator group, or the as the rights to marry29 or to move freely) or group of the old and its comparator group, other activities and autonomous choices.30 but not the young and the old. A person of The analysis of the limitation of the autono- a majority race is different from a person of my of under-age persons in order to protect a minority race exactly as much as the mi- children and young persons, and occasion- nority person is different from the majority ally others (e.g. minimum age for driver’s person. Similarly, a woman is different from licence), is beyond the scope of this article. a man as much as a man is different from a These examples are mentioned in order to woman.34 Any difference (especially hierar- illuminate the complexity of protection and chy) established between the different race autonomy when considering age in human rights and non-discrimination law. path between the two race (or sex) groups is(or equal, sex) groupsback and is suspectforth. By classification. contrast, in conThe- All these limitations might sound discrimi- sidering the two poles of the age scale, it is natory within the sphere of thoughts on age clear that the “young” is differently different discrimination. They are based on assump- from the “elderly” than the “elderly” is from the “young”. There is no equal way back and individual assessment. Still, such norms, pro- forth, because, in the context of non-discrim- tectingtions, setting the young, fixed especially dates that those do not under permit full ination, they are not comparable groups. age are not considered “discriminatory”. Their comparator is the “adult”, the “mainstream adult”. (See below in section 2.) The markedly different nature of young age is expressed in the unquestioned interna- This is an important element to clarify in or- tional consensus about the need for limita- der to correctly identify the personal scope tions. We may conclude that a benevolent of age discrimination. With the exception protective aim behind a limitation eliminates of the age-neutral approach of EU age-dis- or neutralises the discriminatory nature of a crimination legislation, which is unique in its provision.31 kind, and apart from protective limitations, it

Thus, we should look at age as a bipolar- for the right to equal treatment of the young ity (two opposite poles) and a (temporal) atis difficultthe international to find comprehensive level. This is particularly protection continuum at the same time. While in the missing in respect to the early years of adult- context of other grounds of discrimina- hood when protection against age discrimi- tion, especially gender discrimination,32 nation and the guarantee of the right to equal feminist theorists argue that “[s]ex in na- treatment would be the most important.

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2. Everyone Has an Age? Another recurrent argument is that it is dif-

Age discrimination is considered primarily by the elderly as a class. The social status and to concern protecting the aged against treat- materialficult to talk conditions about social of life disadvantages are changing faced with ment which is not based on the merits of the ageing. Some people are better off while be- individual, but is instead based on presump- ing younger, some reach better conditions by tions and prejudice connected to the catego- their older years, and therefore it would be ry. The need for such legislation is clear and - is addressed in detail in the human rights lit- crimination. Further, it is argued that age is erature.35 In spite of the broad and convinc- notdifficult an attribute to associate that the is unchangeablydifferences with a partdis ing arguments, age discrimination is, as dis- of the identity of the person, determining cussed above in Part I, surrounded by doubt social contacts, cultural identity, creating a as to whether ageing persons are, indeed, a “discrete and insular” minority lacking ac- category in need of the same protection as cess to political power.36 Conversely, political other, classic categories. and economic power can be rather associated with older age groups. Above, we have seen how misleading the statement “everyone has an age” is in respect This is misleading again. In spite of individ- to age discrimination. Another similar, mis- ual differences, the elderly, especially when leading objection against prohibiting dis- not having regular income anymore, are crimination on grounds of age is the state- worse off as a group, at any point in time.37 ment that “ageing affects everyone”, i.e. the - disadvantages are distributed equally and ible, progressing nature of ageing. Even if there is no one group that can be demarcated everyoneArguing “fluctuation” is ageing, at overlooksany given timethe irrevers there is as “vulnerable” or “inferior” and thus requir- a dominant and a “minority” group. This is, ing protection. indeed, a dynamic phenomenon, which however does not support the statement that the While it is a trivial truth that with time old advantages and disadvantages of life are dis- age reaches everyone, this does not mean tributed among age groups equally. that all age groups are “equal” and we do Ageing is a one-way, progressing and irre- “minority” groups, the superior and inferior versible process that is coupled with cer- innot the find social a division context between of all “dominant”discrimination. and tain disadvantages at any point in time and These groups are also present along the age these disadvantages are increasing, creating scale. However, it is important to empha- the need for equal treatment, protection and sise again that it is not the “young” and the balance. Such a dynamic of growing and de- “old” that are the two opposite poles here; creasing is not an attribute of any other dis- rather, the “mainstream” (“normal”) age is criminatory grounds. At the same time, the the comparator and the opposite group to fact that ageing reaches everyone expresses the “ageing” or “older”. Or, in the context of the one-way character of the attribute which discrimination on the ground of young (full) underlines its irreversible and irresistible age, the young adult has to be compared to nature and powerfully underlines the impor- the mainstream adult, underlying again that tance of nuanced protection, adequate and “old age” and “young age” are two different proportionate, against all forms of discrimi- grounds of discrimination. nation on the ground of age.

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A legal framework which enables adequate, ries are used for approximate distinction.38 complex and proportionate protection of Regulatory borderlines provide an indication the category differentiation within the of years. Policies which rest on the criterion group is needed in order to protect against of biological age, such as a birthday, and not various manifestations of age discrimina- on substantive factors or capabilities such as tion and to protect the equality and dig- when a person is losing her or his capacities nity of individuals throughout the various and competences, would be fundamentally phases of the ageing process. The elderly undermining the principle of individual as- are not a homogenous category. The group sessment of all persons, which is a core con- is comprised of two main subcategories: the cept of equal rights. elderly of working age (the limits of which At this point, the distinction between two number of years) and those beyond work- different groups of older persons protected ingare age. individual For those and who not are fixed of toworking a specific age against “ageism” raises the need to try to and want to work, learn and develop, non- clarify how protection and non-discrimina- discrimination legislation should establish tion are and should be present in the guarantee of equal dignity and in the creation of to employment, job security and equal an integrated society, whereas the inclusion treatmentfirm employment in the workplace. protection, These equal guaran access- of the young in non-discrimination legisla- tees are crucial and are the core of non-dis- tion further complicates the understanding crimination. At some point in time, the need of age discrimination. for protection against employment discrimination gives way to the phase of life when Part III: The Material Scope of the Prohi- non-discrimination in health care and social bition of Age Discrimination – Protection services is of particular importance togeth- in Employment er with the right to conditions of maintain- ing a life in dignity and independence. This The material scope of the prohibition of age latter age might be associated with the so discrimination can be said to cover two ma- called “fourth age”, although no clear bor- jor areas: prohibiting discrimination in em- derline can be drawn. ployment, and, outside employment, provid- ing assistance while prohibiting discrimina- The differentiated scope ratione personae tion. These two different areas correspond dictates a differentiated ratione materiae. to the above mentioned internal grouping of Failure to properly distinguish the two sub- the affected population: categories and adjust legislation to their needs may weaken protection for both and 1) those of working age (i.e. those who are may contribute to the persistence of the ob- able and willing to participate in the labour scurities around age discrimination. market, regardless of age), and

While emphasising the importance of the 2) those who, being beyond working age and distinction between the two subcategories detached from the workplace, still have a and of an adequate legal framework, it is also right to a full life in health and dignity, inte- important to underline that no normative grated and participating in society and in all kinds of human activity, as much as possible especially not years of age. Statistical catego- and for as long as possible. definitions or borderlines are acceptable,

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The distinction between the two areas is essential when looking at the existing country and the disadvantages faced by legislation protecting the elderly from older“rising workers productivity in their and efforts affluence” to retain in and, the discriminatory differentiation. A brief in- especially, to regain employment when ternational review shows that where legis- displaced from jobs due to discriminatory lation provides stronger protection to the employment practices, especially those of ageing population in the first area (i.e. in setting arbitrary age limits.41 The problems employment), like in the US, the protection affecting older people due to the deteriora- of equal opportunities in the second area tion of their skills, morale and acceptability (i.e. beyond working age) is weaker; and to employers resulting from longer unem- vice versa, the extended protection of life ployment, were also mentioned.42 No men- opportunities and provision of social ser- tion was made of the (already at that time) vices beyond working age in Europe is cou- ageing society or to the needs of the labour pled with more permissive legislative and/ market or pension budgets. or judicial approach to coercive ending of the labour market career of a person.39 Second, the timing of adoption of ADEA and its terms also expressed the very close rela- - tionship with civil rights equality protected tection in employment for those above a by Title VII of the Civil Rights Act. ADEA was certainAt a risk age of is simplification, the model adopted the strong in the pro US, adopted fairly soon after the adoption of Ti- while protection outside employment and tle VII, in the wake, and as another result, of beyond the working age is rather found on the rising civil rights awareness of the dec- the European continent. The focus of the ade. Its language was almost identical to that following sections will be on this division, of Title VII and its exceptions tailored simi- whilst also exploring EU norms on age dis- larly narrowly. crimination in employment. A different and more elastic approach is 1. ADEA: the Exemplary Statute especially in its Recitals 6-8. These consid- The US ADEA40 is an early and, still, the clear- erationsreflected are in include the EU the Framework point that the Directive, “social est example of statutory protection of ageing and economic integration of the elderly and workers against discrimination in employ- disabled people” (Recital 6) is necessary for ment. Age discrimination legislation in the the achievement of their substantive equal- US was an early, welcome and non-discrim- ity. The reference in Recital 7 to the coordi- inated child: the Congressional reason be- nation of employment policies of EU member hind ADEA was to uphold the constitutional states, and, particularly, the text of Recital 8, right to equality of individuals in this group. referring to the 2000 Employment Guide- In contrast to other parts of the world, there lines, as well as further references to labour was no reference to numerous demographic market policies, imply a goal of “combating and economic exigencies necessitating the discrimination” as a social phenomenon and protection of the equal rights of the elderly. as a labour market policy instrument.

The US Congress, in its statement on the An apparent second difference between the purpose of the proposed legislation, re- US and EU approaches is the consistency of ferred primarily to the contrast between the prohibition. The Bona Fide Occupational

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employing 20 or more workers are “em- - ployers” for the purpose of the Act, obliged Qualificationtions which have (BFOQ) been defence narrowly under interpreted. US law to obey the non-discrimination rule.48 Thus, offersBy contrast, narrow the and text specifically of the Framework worded excepDirec- employees working for an employer having tive establishes quite a host of exceptions.43 fewer than 20 employees are deprived of the Some of the exceptions related to public right to non-discrimination based on age. safety are similar to those included in the This questionable limitation is not dissimilar 44 However, to the approach to discrimination of Title VII, the US Act gives a concrete catalogue of those where the limitation is to employers having definition of “employee” in ADEA. 15 or more employees. The limitations ex- exceptions (employment policy and social press the hesitant intervention of a liberal security)positions. are Furthermore, entirely missing the specific from ADEA. old age state into private relations (private employment), which would be incompatible with The US ADEA protection originally covered the nature of human rights from a European persons between 40 and 65 before being point of view.49 extended to 70. Later, ADEA was amended to remove any upper limit. The Act prohib- Restrictions depending on the size of the em- its discrimination on the ground of age in ployer do not feature in the European equal- decisions relating to recruitment, discharge, ity Directives, contrary to the continuous and promotion and other treatment, including consistent special attention paid to small and - medium size enterprises in the labour and istration of the Act from the Department of employment law of the European Union. Any Labourfinancial to benefits. the US Equal The transfer Employment of the Opporadmin- concession based on the size of the employer tunity Commission (EEOC)45, the administra- is incompatible with the principle of equal tive agency with broad power to enforce the treatment followed by the CJEU even before most important equal treatment legislation the adoption of the equality directives. of the US, indicates an intention to ensure effective enforcement.46 2. Differential Treatment of ADEA and Title VII? In the US, with its employment-at-will system in which employees hardly have any With the broadening opportunities to litigate protection other than through anti-discrim- against discrimination on different grounds ination laws, especially in respect to hiring, relying on different pieces of legislation (for promotion and dismissal, the adoption of age example race and age – protected by differ- discrimination legislation had a distinctive ent legislative instruments both in Europe impact on the status of people over 40.47 and in the US), the question might arise: reliance on which of the grounds is most likely Despite the apparently strong protection to result in a successful outcome? Such a question might imply testing the “force” of tight system. One is the limitation of the per- the different laws. sonalgranted scope by ADEA, of the some Act flawsthrough still the tarnish concept the In the EU, the proliferation of grounds of on the size of the employer expressed in the discrimination, i.e. the addition of further numberof “employer”. of employees, The first based limitation on a legally is based set grounds (race, ethnicity, religion or belief, calculation of an average. Only employers disability, age and sexual orientation) to the

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original two (nationality and sex) by the so have taken advantage of ADEA.57 Women and called “Article 13” Directives,50 coupled with racial minorities in older ages are under- represented.58 It has been argued that one said to result in a preference in discrimina- possible reason for this is that these groups tionthe stratificationlawsuits for “newer” of the grounds, grounds. has51 Claims been are more frequently in lower positions than in cases where discrimination is present on white males and have less to lose or gain.59 multiple grounds are more likely to be won However, there are a number of other pos- in relation to the newer grounds. Dagmar sible explanations. First, it may be the result Schiek points to the Kücükdeveci case52 to il- of the difference between available damages lustrate this observation.53 In this case, the and compensation under ADEA and Title VII, formal age discrimination claim overshad- which makes it more attractive for women owed the originally referred ethnic discrimi- and racial minority employees to pursue a nation (Turkish accent) and veiled the prob- Title VII claim. The remedies available for ably present impact of gender. In Coleman,54 a violation of ADEA are weaker than those the disability ground was clearly joined by available under the Civil Rights Act. Viola- the gender aspect; however, gender was not tions of ADEA fall within the remedial rules covered by the judgement.55 of the Fair Labour Standard Act,60 which limits remedies to lost pay (back pay and antici- Contrary to the example of the EU, where the pated future pay) and reinstatement. Com- “new”, and – as mentioned above – “weaker” pensatory (for emotional distress or pain) grounds – seem to be preferred, in the US, in and punitive damages are not available to age spite of the almost identical language of the discrimination victims. This difference might US ADEA with the text of Title VII, we seem create a silent incentive to claim discrimina- to be confronted with the opposite case. In tion under Title VII if both are available. addition to the comparative usefulness of grounds protected under ADEA and Title VII, There appears to be a preference by plaintiffs a further incentive to comparison of the ef- covered by multiple non-discrimination pro- fectiveness of the two Acts has been that sur- tections to pursue a claim based on a more veys on the impact of ADEA relating to the traditional suspect ground, where they have type of cases and affected classes of persons more of a chance to be successful with their have shown somewhat unexpected results, claims under Title VII than under ADEA. The which were not contemplated when ADEA difference in the burden of proof and the was adopted. For example, the composition available defences under each system might of the cases is notable. The vast majority of be crucial for the success of the claim. the cases concerned wrongful (discriminatory) discharge of workers or forced retire- The similar language of Title VII and ADEA has raised the question – to which there is no un- cases litigated in relation to discriminatory equivocal answer – of their analogous or dif- experiencesment. There in have job beenseeking, significantly discriminatory fewer ferent interpretation by the courts. A quick re- employment conditions, such as promotion view of the allocation of the burden of proof in 56 - parate impact cases and in so called “multiple Surveysor demotion, on thecompensation subject demonstrate and benefits. that ground”two specific cases, discrimination show that the situations, original “equalin dis typically white males, mainly in managerial treatment” of ADEA and Title VII by the courts positions or professionals over the age of 50, has given place to “differential treatment” of

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the two statutes, raising the burden of proof claimed that a salary increase plan that ad- on ADEA plaintiffs higher in comparison to Ti- tle VII victims of discrimination. of service over those who were more senior constitutedvantaged those age whodiscrimination. had less than In thefive City years of In 1973 the US Supreme Court established a Jackson case the Supreme Court found that clear test, the so called “McDonnell Douglas the aim of the employer “to make junior of- test”,61 for Title VII (race or sex) discrimination positions in the market” was reasonable and that plaintiffs face of proving discriminatory didficers’ not salaries violate competitive ADEA. The withmuch comparable criticised, intentcases, intendedin the invisible to facilitate mind theof the difficult employer. task controversial and, indeed, absurd aspect of The McDonnell Douglas test assists plaintiffs the judgment was that, on the one hand, the by shifting the burden of proof between the Court, referring literally to the analogous plaintiff and the defendant employer. Once the language of ADEA and Title VII, accepted that employee establishes a prima facie case of dis- a claim for disparate impact can be submit- crimination – e.g. being rejected and someone ted both under Title VII and ADEA. However, else being preferred, the burden shifts to the on the other hand, referring to a difference employer to produce evidence that the rejec- in the language of the two Acts regarding the tion or preference was for a non-discrimina- available defence for employers, the Court tory reason. Then the plaintiff should provide found it “clear that the disparate-impact evidence that the employer’s asserted justi- theory’s scope is narrower under the [ADEA] than under Title VII”.64 The reason for this ADEA cases by several Circuits, based on the seemingly self-contradicting argumentation similarityfication is offalse. its languageThis test haswith been Title applied VII; how inis that ADEA permits employers to take ac- ever, the US Supreme Court has not yet ruled tions with disparate impact affecting work- on its applicability.62 ers above 40 if there is a “reasonable factor other than age”, an opportunity not available A different, less promising approach is re- to defendants under Title VII. In addition, since the textual difference between the two Title VII cases in assessing so-called “dispa- Acts resulted from a 1991 amendment of rateflected impact in the cases”. courts’ The treatment original of aim ADEA of andad- Title VII expanding the room for disparate mitting disparate impact litigation (similar, impact claims, which was not replicated in but not identical, to indirect discrimination ADEA, the Court interpreted the decision of in the EU) under Title VII was to ease the Congress as consistent with the fact that age, burden of proof on plaintiffs by allowing the plaintiff to prove disparate intent through has relevance to an individual’s capacities.65 statistical and other circumstantial evidence. unlike Title VII’s protected classifications, Employers could then defend themselves by The difference between the treatment of referring to business necessity and to the claims under Title VII and ADEA cases fi- reasonableness of their measures, a defence nally received confirmation by a 2009 which would then be explored to examine milestone (or rather bumping stone) case. whether alternative options which impacted In Gross v FBL Financial Services,66 the Su- less on the protected class were available. preme Court excluded so-called “mixed- motive” claims from US ADEA by, again, In the controversial Smith v City of Jack- distinguishing the language and interpre- son case,63 tation of ADEA from Title VII.

a group of senior police officers

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Similarly to the introduction of the Mc- they can persuade the court that their em- Donnell Douglas test and disparate im- ployer would not have acted in this way “but pact claims, the intention behind admitting for” their age.69 mixed-motive claims had been to make the onerous, occasionally insurmountable, bur- 3. Reverse Discrimination – Younger and den of proof lighter on discrimination vic- Older tims. In mixed-motive cases, when the differential treatment has both legitimate and The lack of clarity around age discrimina- discriminatory reasons, the plaintiff has tion, especially the principle of its one-way the burden of showing that discrimination protection, and the necessity of separation was one of the motivations substantiating of young age and old age discrimination as the employer’s action, and then the burden two different grounds, have led to uncer- shifts to the employer to convince the court tainties under ADEA in the US and, in the that they would have taken the same action future, may lead to uncertainties in the EU without the discriminatory motive present.67 as well. The European Framework Direc- tive prohibits age discrimination against a proving that “but for” the discriminatory in- person at any age, in comparison with those tention,This saved the the employer plaintiff would from thenot difficultyhave taken of who are either older or younger. There is the same action. no distinction either in the language of the Directive or in the case law so far between In Gross v FBL Financial Services, a case discriminating on the ground of older age where there were legitimate reasons mixed and discriminating on the ground of young- with discriminatory consideration based er age. In spite of the lack of symmetry and on age, surprisingly for many, the Supreme the non-binary nature of age discrimina- Court decided not to permit the application tion, this has not caused a problem so far. of the mixed-motive approach. Mr Gross, a There was no competition or clash between 54 year old employee of FBL, was transferred the younger and older protected groups, in to another position, while his former job was contrast to the case law under ADEA, where assigned to a younger employee, previously the question arose as to whether the pro- his subordinate. He claimed that this reas- tection of the younger against the older was signment took place due to his age, therefore covered by the statute. Taking the cases it violated ADEA. FBL defended its action by that have been decided so far by the CJEU asserting that the transfer was due to compa- on discrimination on the grounds of young ny restructuring and the new position more age, the discrimination was not in favour of was closely aligned with Mr Gross’ skills. older persons, no older comparators were Since the facts of the case pointed at the present and in both cases the actual age of presence of legitimate, non-discriminatory the applicants was not at issue.70 reasons as well as the consideration of the age of the employee, the Supreme Court de- ADEA, by setting 40 years of age as the lower cided that this was a mixed motive claim, and limit of the personal scope of the Act and that the mixed motive analysis developed excluding from protection anyone younger under Title VII was not applicable under than 40, clearly creates two groups: the pro- ADEA.68 As a result of the judgment, where tected and the non-protected. There is, how- there are multiple reasons for an employer’s ever, a clear difference between someone action, a plaintiff will only be successful if in their early 40s and someone in their late

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60s or older. Several cases have reached the over 40, claimed that the employer’s early re- courts on the basis of ADEA where the dis- tirement plan discriminated against them on crimination has occurred within the protect- the basis of their (younger) age. The case was ed group. These cases raised the question of decided in favour of the defendant employer, whether discrimination within the protected and the Seventh Circuit Court clearly rejected group is prohibited and, particularly, wheth- any symmetrical view of the two possible di- er discrimination within the protected group rections under ADEA. The Court stated that is prohibited not only against the older, but “[t]itle VII protects whites and men as well also against the younger person, in favour of as blacks and women, but [ADEA] does not an older person (“reverse discrimination”). protect the young as well as the old, or even, we think, the younger against the older.”73 Contradictory interpretations by courts at The Court added that permitting such claims different levels in “reverse discrimination” would end the possibility of early retirement cases resulted in almost two decades of un- plans, unless such plans were open for em- certainty. This uncertainty raises more gen- ployees from 40.74 The wording of ADEA, eral issues as to the nature of two-way age by referring repeatedly to “older” persons, discrimination, such as whether the protec- seemed to indicate that the prohibition was tion is provided equally in both directions only in one direction, even within the broad (from young to old and from old to young) age category of over 40. and thus whether age discrimination is comparable to other grounds in this respect. This decision was followed by divergent Discriminating against a man in favour of a analyses by the courts. In 1991, the EEOC woman is not less prohibited than vice versa, issued a regulation acknowledging that, al- but is the same true of age discrimination, though ADEA prohibits discrimination in i.e. is discriminating against the young in fa- both directions, it does not permit favouring vour of the old prohibited the same way as one person, be they older or younger, over vice versa? The non-binary character of the another merely on the basis of age if both are personal scope (see Part II, section 1 above) over 40.75 However, this regulation was not of age discrimination also necessitates a con- followed by the majority of the courts. sideration of what difference is required for The divergence between the EEOC and the younger or older should the claimant be than majority of courts deciding cases of reverse thea finding comparator of age in discrimination. order to get protection? How much age discrimination culminated in, and was The issue of retirement (especially early re- ended by, a US Supreme Court decision in tirement or deferred pensions) gives an ad- the case of General Dynamics Land Systems, ditional twist to the issue of the “two-way” Inc. v Cline.76 Cline, together with other 196 discrimination. These questions have been workers, all between 40 and 49, claimed that answered under ADEA case law and might General Dynamics discriminated against contain some message for the interpretation them on grounds of age by entering into a - collective agreement that abolished the pro- tion by the European Framework Directive.71 of the unlimited definition of age discrimina except for workers who were 50 years of age The issue of two-way discrimination had al- orvision older of on health 1 July benefits 1997. Upon to retired a survey workers of the ready arisen in a case in 1988. In Karlen v City former reverse discrimination claims and Colleges of Chicago,72 the plaintiffs, who were arguments presented, the Court found that

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the meaning of the word “age” is determined young), not only contributes to the uncer- by the context of “discrimination” because of tainties accompanying age discrimination the age of an individual. This context, as in- but is also a barrier in the way of prohibiting terpreted by the Court, revealed the intent of the most frequent form of age discrimination the drafters to protect the old from employ- – mandatory retirement. ers arbitrarily favouring the young. The Su- preme Court decided the case in favour of the Part IV: Mandatory Retirement employer. It held: If we say that employment discrimination, “[T]he ADEA’s text, structure, pur- and particularly age-based discharge from pose, history, and relationship to other fed- employment, constitutes the bulk of age dis- eral statutes show that the statute does not crimination claims, mandatory retirement mean to stop an employer from favouring an is at the very crux of the age discrimination older employee over a younger one.”77 debate. Mandatory retirement arrangements either in law or in collective agreements The EEOC amended its regulation and ad- mainly serve to assist employers in avoiding justed it to the decision, and according to the - amended text: tory termination of employment. Notwith- standingthe legal legal and enactment, financial costs the discriminatory of discrimina “It is unlawful for an employer to nature of mandatory retirement stays there. discriminate against an individual in any aspect of employment because that individual 1. Arguments for and against Abolishing is 40 years old or older, unless one of the Mandatory Retirement statutory exceptions applies. Favouring an older individual over a younger individual With the process of ageing, working life in- because of age is not unlawful discrimina- evitably comes to an end at some point in tion under the [ADEA], even if the younger time. Who is competent to determine when individual is at least 40 years old. However, this should be? The most rational and most the [ADEA] does not require employers to fair answer to this question is that the in- prefer older individuals and does not affect dividual is best placed to know when this applicable state, municipal, or local laws that should happen. prohibit such preferences.”78 The formal retirement age has been a result One of the arguments accepted in the Cline of the historic changes coming with the in- decision was that: dustrial era: the social and institutional separation of the place of work (wage-earning) “[R]ecognising reverse age discrimi- from the home and the consequent need for nation would limit the freedom of employers institutionalised income replacement when - wage-earning became impossible. Before ers, whether it is to encourage them to retire this separation, no formal (lower or up- orto offerto reward any sort them of benefitfor years to ofthe service.” oldest work79 per) limits of working age were known; the gradual growth of the child and its capaci- Indeed, the two-way prohibition of age dis- ties, and, similarly, the gradual reduction of crimination (without clearly distinguishing capabilities resulted in natural and gradual between “ageism” and the protection of the increase or decrease of the participation in

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the work of the family or larger community Numerous arguments are brought up in fa- while permanently having a share in the re- vour of permitting involuntary retirement sults of the family work.80 (or against the abolition of forced retirement) and this article does not explore all Formalisation of retirement resulted in of them. To summarise, the arguments are the legal entitlement to retire, i.e. to receive an income replacement from the Firstly, reference is made to the need for fair state.81 On the other hand it brought a distributionclustered around of job opportunities, two key justifications. having re- compulsion, too, to detach from the work- gard to the chances of younger generations. place and the labour market. While it is Secondly, a reference is made to safety con- undisputed that the entitlement to retire siderations (e.g. in the case of airplane pilots, and to receive an income replacement needs a formal lower age limit and the have some limited relevance in certain pro- entitlement cannot be connected to the fessionsfire-fighters, and occupations, etc.). Both but arguments they are mightof no actual state of working capacity of the in- general value.84 dividual,82 the issue of when and how the worker might be compelled to leave the A frequent benign argument is that auto- workplace is not at all undisputed. matically ending employment at a certain age pays more respect to the dignity of the From a non-discrimination point of view employee than referring to (and eventually such a compulsion is unfavourable treat- proving) a decrease in their capacities and ment, and if discrimination is prohibited on in the quality of their performance. It could the ground of age, then such compelled re- be argued, however, that the ageing person tirement must be prohibited. is able to decide and choose the best way for their own interests. Mandatory retirement refers to two main - Notwithstanding a degree of rationality in all mination of employment upon the initiative these arguments, the normative indication ofways the of employer, ending employment. with reference The to first a retireis ter- of a date as the compulsory upper limit of a ment age that cannot be legally challenged person’s working capacity and of their right by the employee. This might be based on the to work is incompatible with the principle law (in systems where termination requires of non-discrimination, at the core of which just reason), or on a provision of a collective is the right to individual assessment. There- agreement or contract.83 fore, the abolition of mandatory retirement is a sine qua non of the genuine prohibition The second way is the automatic termination of age-discrimination. of employment by law, whereby no action is required by the employer. Such automatic 2. Plain Prohibition in the US and Compla- termination might be assimilated to the loss cency in the EU of legal capacity of that person for at least that position, similarly to losing, in the wake The attributes, similarities and differences of the US and the EU treatment of the issue enabling one to work as a medic, or the clean of mandatory retirement have their roots criminalof a criminal record charge, for a ajob medical where qualificationsuch record in the divergent social security systems: is a requirement. the contract (collective agreement) based

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insurance, as well as the generally more in- was motivated by a strong respect for indi- dividual and freedom-oriented US system, vidual free choice and the intent to eradicate compared to the top-down, mandatory pro- unfair stereotyping, in the EU Framework tection that can be traced back to the Bis- Directive, the anti-stereotyping intent was marck social security system which forms coupled with a broader social and economic the foundation of social security in conti- consideration and the intent to react to the nental Europe. Similar to pensions, in the problems of “ageing society”,87 as well as to US the mandatory retirement system was labour market and budgetary (social secu- established by a system of contracts, while rity) problems. Thus, while the US courts do in Europe it was established by protective not treat the issue of mandatory retirement social legislation originating the famous any differently from other issues of age-dis- Bismarck social security legislation of the crimination under ADEA, the ECJ treats man- last decades of the 19th Century.85 datory retirement differently, submitting it to different tests. Under both systems, the termination of employment on the ground of an assumed de- The US Supreme Court’s approach was es- cline of physical and intellectual capacities tablished in Western Airlines Inc. v Criswell, was considered a valid constitutional solu- a mandatory retirement case for airline tion. The fact that such a restriction on the pilots and engineers,88 in which the Court right of the individual to freely choose and held that age cannot serve as a proxy for exercise a profession was a violation of a the possession of high level safety-related constitutional right was not considered by job qualifications. The Federal Aviation the courts, which accepted mandatory retire- Administration regulation prohibited per- ment as constitutional.86 sons aged 60 or over from serving on an airplane as a pilot, co-pilot or cockpit engi- The idea and need for the abolition of man- neer for safety reasons. Accordingly, West- datory retirement came around the same ern Airlines required the plaintiffs to retire time as the introduction of a legal prohibi- upon reaching their 60th birthday. While it tion of age discrimination, which in the US was not disputed that the high level safety meant the time of the introduction of ADEA requirements were relevant and that ageing may affect the ability to meet these, the in the EU this meant the time of introducing Court held that the employer must estab- the(and Framework finally with Directive its 1986 in amendment); 2000. and lish either (a) that it had reasonable cause to believe that all, or substantially all, per- If we compare the case law of the ECJ and sons over the age of 60 would be unable the US courts developed on the basis of the to perform safely the duties of the job, or respective legislation, the apparent differ- (b) that it is highly impractical to deal with ence is that while US courts do not accept older employees on an individualised ba- the automatic retirement age, the ECJ has a sis.89 The Court emphasised that Congress, - when adopting ADEA, subjected differen- wards regulations in member states forcing tiating decisions to the objective justifica- employeessignificantly to more retire deferential involuntarily. attitude The ap to- tion of the BFOQ test which demands the parent difference is mainly attributed to the “reasonable necessity” of the measure for different background of, and motivation be- it to be permitted, a test which is a higher hind, the legislation. While in the US, ADEA requirement than “reasonableness”.90

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When appreciating the high level of scru- claiming discrimination, the interpretation tiny applied in this case, especially in com- by which they are seen to permit mandatory parison with the more lenient tests applied retirement seems exaggerated. by the ECJ – which is more receptive towards references to labour market reasons The difference in the motivation and the text legitimising regulatory efforts by the mem- of the US and EU legislation almost naturally ber states to set time limits of the retire- led to a difference in the interpretation and ment of older workers91 – certain things case law based on these legislative instru- must not be forgotten. ments. Unlike in Europe, the respect for the free choice of the individual lying behind the First, in 1985, when the case was decided, US non-discrimination rules permits excep- the US ADEA still contained an upper limit tions from the prohibition of differential on the prohibition of discrimination. When a treatment on the basis of age to only a lim- person reached their 70th year, the protection ited extent, submitting any exception to the - strict BFOQ test and apparently not permit- ment age foreseen by the legislation and it ting the use of age as a proxy for the lack or madefinished. it possible In other towords, make there no distinction was a retire between mandating retirement and other age- based differentiation as long as it remained 3.loss Article of the 24 appropriate of the European qualification. Social Charter below the legislative end of the (protection of the) working career. By contrast, the ECJ Not unlike other human rights treaties, the was confronted with a legislative situation RESC does not expressly mention age in its not setting any upper limit, where a ceiling to Article E prohibition of discrimination. Con- taining a non-exhaustive list of grounds end- could only be set by court interpretation. ing with “other status”, Article E is open for the infinite prohibition of age discrimination interpretation as covering other grounds of Another uncertainty for the ECJ might have discrimination. Recent developments in the derived from the symmetric approach fol- case law are shifting towards a more indi- lowed by the Framework Directive, i.e. vidual and free-choice oriented interpreta- where discrimination is prohibited not only tion of several provisions of the Charter.92 For against the older but in the reverse way too. example, in its 2012 cycle of supervision, the As discussed above, while ADEA only pro- European Committee of Social Rights (ECSR), hibits discrimination against older persons, the independent expert body supervising the even within the protected age group, the implementation of the Charter and the com- EU Framework Directive protects everyone. pliance of state parties with their obligations This naturally raised uncertainties for draft- under the Charter, has developed its inter- ers of the Directive and resulted in refer- pretation of Article 24 in a new and stronger non-discrimination spirit. pension age in Recitals 13 and 14 of the Di- ences to social security benefits as well as- Article 24 guarantees the right of employ- cept of pay, and setting a shield between pen- ees to protection in cases of termination of sionrective, systems excluding and suchthe reach benefits of thefrom Directive. the con their employment. Among others, states However, if one perceives these references as must adopt legislation that guarantees the merely a precaution against the young (or at right of all workers not to have their employ- least those below the national pension age) ment terminated without valid reason. The

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ceases by operation of law, do not fall within considered valid: reasons connected either the scope of this provision. withtext specifiesthe capacity two or sorts the ofconduct reasons of thatthe em are- ployee; and operational requirements of the This distinction between the above men- employer. The Appendix to the Charter (an tioned two kinds of “mandatory retirement” integral part of it and equally binding) enu- is based on the text of the Appendix that de- merates the reasons that “in particular” may clares that for the purposes of Article 24 the not be considered valid under the Charter.93 term “termination of employment” means The text makes it clear that further reasons termination of employment at the initiative might join this list. of the employer. It is important to add that legislation that makes the retirement “man- Age is not enumerated among the prohib- datory” for the employee, but provides the ited reasons, and the assessment of national employer with the privilege to retain and laws permitting age as a legitimate ground continue employing the employee, is not for termination of employment (i.e. man- considered to be a statutory exception from the Charter. cycles assessing Article 24.94 This changed datorywith the retirement) 2012 cycle was and unclear the issued in the state first- On the ground of this new position of the ment of interpretation. ECSR, in the 2012 cycle of assessing the compliance with the Charter, a total of six coun- The ECSR confronted (or matched) with tries96 were declared to be violating their each other the open-ended list of prohibited reasons in the Appendix and the exhaustive not observing the prohibition of termination byobligations the employer under merely Article on 24, the specifically ground of age by said that a new ground – age – can be added without the presence of any valid reason. In todefinition the automatically of valid reasons illegitimate in Article reasons; 24 and view of the novelty of the clear requirement however, no ground can be added to the de- of having mandatory retirement abolished, the situation could not be unequivocally as- with the conduct or capacity of the employ- sessed due to the lack of information in the eefined or the legitimate operation grounds of the enterprise). (those connected Thus, reports on a number of countries. With re- the ECSR established that under Article 24, spect to these countries, the 2012 “deferral” dismissal of the employee on the ground of of conclusion on that point and the request having reached the normal pensionable age for more information on the prohibition (the age when an individual becomes en- of mandatory retirement might result in a titled to a pension) will be contrary to the negative conclusion in the 2016 cycle when Charter, unless the termination is properly reports on Article 24 will next be assessed.

grounds expressly established by this pro- Following the above-mentioned 2012 cy- visionjustified of with the Charter.reference95 toAt onethe ofsame the time,valid cle, a pending collective complaint alleging the statement of interpretation emphasised a violation of Article 24 in general, and the that such termination is prohibited only prohibition of involuntary retirement in par- when it is initiated by the employer, and sit- ticular, must be mentioned. Follesforbundet uations where a mandatory retirement age for Sjǿfolk (FFFS) v Norway97 concerns the is set by statute, as a consequence of which mandatory retirement at the age of 62 for the employment relationship automatically seamen under the Norwegian Seamen’s Act.

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The claim was declared admissible and the the employer, at the age when work perfor- case is still pending and is to be watched mance and the daily challenges of the work- with interest. place become burdensome.98 These systems

4. Conclusion: Two Preconditions for a Nat- 99 ural Ending of Working Life can guarantee a smooth, flexible and, above all,Issues dignified of human career resource end. management, just We cannot reject the fact that working ca- reasons for terminating employment, as well pacity decreases with age and the prohibi- as the proper regulation of the social securi- tion of age discrimination would not mean ty and pension systems go beyond the scope that persons who are objectively not capa- of this article. ble of performing certain tasks might not be transferred to jobs more adjusted to Part V: Discrimination outside Employment their capacities or have their employment terminated. Mandatory retirement is nev- 1. Legislative Acknowledgement of the ertheless incompatible with a principled Right to Dignity beyond Working Life approach to equality and its broad accept- ance undermines non-discrimination on the The right of all human beings to be equal in basis of age. dignity, to be treated with respect and consideration and to participate on an equal In place of mandatory retirement, two pre- basis with others extends to the period fol- conditions are necessary to remove the bias lowing the age of paid work. The start of this and reluctance. First, objective, accurate period is individual and its end is the end and systematic evaluation systems must be of life. Those who, at some stage, live their in place at the workplace. Apart from the everyday life with the assistance of others, potential impact of such systems on the ef- have the right to be equal in dignity and to atmosphere, employers should be interested At older ages, the right to live in dignity not inficiency developing of management them with andthe understanding the workplace onlyhave impliesequal protection a right to and choose benefit between of the law.dif- that such systems are critical in age discrimi- ferent options, but also requires material nation legislation, as a key-point in building conditions and services facilitating inde- the evidence either in favour of or against the pendent life and the social participation of defendant employer. The objective and accu- the aged person. rate evaluation system promotes the avoid- ance of judgements on the basis of impres- The need to specify the meaning of equality of sion and presumption, ensuring that anyone protection of the law for persons far beyond can work and be useful as long as they con- working age and to acknowledge the right to tinue to contribute. such equality was recognised late in international human rights law. While some forms The second precondition is to promote genu- of social care for the elderly, sympathy and ine voluntary retirement through the provi- charity were present in different forms his- sion of adequate incentives. These incentives should include a social security and pension and no one in such care had the right to be an systems that make it possible for persons equaltorically, member no one of had society. a right Institutions to care or benefits of care to retire, voluntarily or in agreement with frequently became institutions of ostracism.

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It was as late as in 1988 when an Addi- “fourth” age starts between 80 and 85. The tional Protocol to the European Social - Charter, in its Article 4,100 guaranteed, for the first time in an international human Anyoneage-defined in any borderlines age might between belong to the any catego of the rights treaty, the right of elderly persons threeries are adult-groups. merely indicative104 Someone and are in nottheir fixed. late to have social protection, live in dignity 60s might be de facto in the “fourth age” and preserving their independence and au- conversely, someone might be still working tonomy, and enjoy integration and partici- well over the age of 80.105 The second and pation in society. (This provision is now third ages are one group for the purpose of Article 23 of the RESC.) age discrimination law: this is when the prohibition of discrimination in employment on Later, in 1995, the Committee on Economic, the ground of age is vital, including the pro- Social and Cultural Rights (CESCR) adopted hibition of mandatory retirement. its General Comment No. 6 on the economic, social and cultural rights of older persons,101 The aim of looking at these categories is to without any enforceable legal content, without clearly outlining the required measures legal measures to guarantee equality. None- regarding the two distinct age groups, and theless,find the sectioning most adequate old age and into proportionate “working mentioning rights in an undifferentiated age” and “beyond working age”, especially way that might be relevant only to one or when the latter is labelled “fourth age” the other group. (which might sound stigmatising), might raise objections. Any sectioning, any catego- 2. The Covered Age Group risation implies associated stereotypes and possible discrimination. The language of the Additional Protocol clearly refers to persons in the post-work- However, treating old age as one undiffer- ing period of life, even if only indirectly, by entiated section of human life would be as enumerating the needs that generally occur unjust as unfair differentiation. As Aristotle in the last phase of life.102 The norms con- says, it is an injustice not only to treat those tained in the Additional Protocol, guaran- who are alike differently, but also to treat as teeing non-discrimination and equalising alike those who are different. If combating life opportunities outside of employment, ageism is nothing more than an unlimited guarantee of equal treatment in employ- faced by those who are already detached ment, even for those who are not capable fromare norms the labour which market typically but reflect still have the aissues need of working anymore, we are far from the and a right to live a healthy and fullest pos- idea of equality. The different phases of age- sible human life. of guaranteeing equality, with respect to Section 9 of CESCR’s General Comment No. 6 theing differences should be reflectedof the phases. in different Equal access forms refers to persons in this stage of life as being - in the “fourth age”. The term is taken from the vices comes to the forefront. The second literature that divides human life into four subjectto health, area financial of age benefits discrimination and social legisla ser- ages: childhood, working age, post-working tion is about requiring positive measures to age and the “fourth age”.103 The third age is estimated to be between 65 and 80 and the at any age and any stage. remove obstacles to an equally dignified life

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This must amount to a requirement to do their needs, with the aim of enabling them to more than just removing and abolishing ste- freely choose their lifestyle and live indepen- reotypes in society. Human life may come to dently in their familiar surroundings as long a stage when the individual is incapable of as they wish and are able to do so.108 Third, functioning independently and is no longer states have the obligation to provide appro- able to have an active role in society. These priate support for elderly persons living in in- persons have the right to live in dignity, not stitutions and, at the same time, to guarantee because of who they are or because of what respect for their privacy as well as their partic- they have achieved in the past. The dignity ipation in the decisions concerning living con- of human society makes this right indispen- ditions in the institution.109 As the statement sable. of interpretation of this provision underlines, the “measures envisaged by this provision, by 3. The Content of “Equal Protection” in the their objectives as much as by the means of Fourth Age implementing them, point towards a new and progressive notion of what life should be for elderly persons”.110 The predominant “service and its main characteristics, the differences provision” nature of the obligations requires ofHaving its members identified from the the “fourth majority age” advise category the an underlining of the guaranteed individual content of the requisite protection. In regu- liberty and freedom of the person provided lating non-discrimination in this area, the with assistance that is an inherent require- focus is on mandating positive measures for ment of Article 23. the provision of services, and on the support to ensure material conditions necessary to There might be an odour of discrimination at facilitate the continued participation and in- the bottom of any positive action to protect tegration in society and preserve independ- disadvantaged groups. This calls attention ence and autonomy. to a balanced and proportionate approach to life situations at any time when the leg- Article 23 of the RESC lays down a set of islature steps beyond the formal concept of - equality and, particularly, when social justice tions on states that can guarantee the effective requires positive safeguards of equal protec- exercisebroad and of atthe the fundamental same time right specific of elderly obliga tion and equal dignity. The “provision” and persons to social protection. The obligations “service” nature of the rights and obligations could be categorised into three main areas.106 regulated by Article 23 is not opposite to First, whether in work or not, elderly persons the right to non-discrimination, but rather should be guaranteed adequate resources to norms built on the requirement of equality. enable them to live a decent life and continue to take active part in public, social and cultural Prohibiting discrimination was not an ex- life. Resources, together with the provision of press part of the above provisions, nor of the information about services and facilities avail- accompanying documents – demonstrating able to elderly persons, guarantee the uninter- the ambivalence related to “protection” and rupted full membership in society.107 “equality”. The original form (questionnaire) for reports, while requiring a description of Second, elderly persons have the right to the legal framework, did not expressly re- health care and services necessitated by their quire non-discrimination legislation to be state, as well as the right to housing suited to in place. Although the ECSR declared that

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non-discrimination legislation should exist tive equality – not yet universally accepted or “at least in certain domains”,111 there was no practiced. This combined concept may also consistent scrutiny of the legislative frame- contribute to dismantling the association of work of the state parties. At the same time, service provision and assistance with absence pervasive discrimination against elderly per- of equality. Thus Article 23 – adopted primar- sons has been reported in health care, servic- ily to provide protective services – is reframed as a genuine non-discrimination human rights as banking and insurance), travel, education, provision. The next round of examining coun- thees (especially use of facilities, in the participation financial industry in civil such dia- tries’ reports on the implementation of Article logue, allocation of resources, etc.112 23 is in 2013. The Conclusions adopted by the end of the year may (and hopefully will) re- In its 2009 cycle, the ECSR, with reference among others to the European Old People’s Platform’s report, started conducting an flectConclusion the above position. examination of the legislation of state parties, requiring all state parties to Article 23 to ensure that their national law explicitly real place of age discrimination in the world prohibits discrimination on the ground of ofThe anti-discrimination purpose of this article law. The was review to find of the age in areas beyond employment.113 A gen- key issues related to age discrimination re- eral prohibition of discrimination declared vealed that the uncertainties around it are in the Constitution or in a piece of legisla- due, in part, to general conceptual issues of tion would not satisfy this requirement. For anti-discrimination law, and that analysing example, Sweden was found in violation of age-discrimination might also contribute to Article 23, because its new anti-discrimination legislation, in force from 2009, prohibits this area of law. discrimination in a wide range of areas of so- the clarification of more general issues of ciety on all grounds of discrimination except First, the two opposite groups relevant to age.114 The prohibition of age discrimination age discrimination – majority (mainstream) was limited to work, occupational and edu- and minority, dominant and subordinated, cational areas. Similarly, in the Czech Repub- perceived as superior and as inferior – had lic and Denmark, the legal framework was found inadequate for protecting against age discrimination outside employment.115 to be identified. Even if no real comparator- tionis required of a group, for the it findingis necessary of discrimination, to point to The new case law of the ECSR provides an thein order two opposite to find discrimination groups. It has asto classificabe clearly opportunity not only for more effective im- seen that, for the prohibition of age dis- plementation of the right of the elderly to crimination, these are not the “young” and - the “old”; rather, for both vulnerable groups, tion and development of the concept of “non- the “mainstream” age-group is the oppo- equal treatment but also for further clarifica site, the dominant. This also might require discrimination with the combined concept of a decision that, within the “mainstream” formallydiscrimination”. equal treatment The identification and a broad of scale non- group, no age discrimination can occur. Fur- of positive measures (regardless of whether thermore, in contrast to the other grounds of discrimination, age cannot be seen as a well) opens the door to a genuine substan- “symmetric” ground. such measures require financial resources as

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Second, the minority groups, both young and and old persons and their subcategories, old, comprise further sub-groups, with re- which ought to incur differences in the regula- gard to the necessary legal measures adjusted tion of their equality and equal opportunities. to the level and nature of their vulnerability. Youth decreases over time and therefore the young have a decreasing need for protection, members merely need non-discrimination while the opposite is true of old age. The two inWithin order both to achieve groups, what we findis corresponding a group whose to extreme poles, the child-age and the “fourth their personal merits, in particular in employ- age” or its later stage, may show similarities ment. For the other, increasingly vulnerable, in the need for care, support, control, insti- subgroup, protection against exclusion, abuse, tutional care and assistance in decision mak- exploitation or degradation has to share the ing. One of the core concerns addressed by main role with enforced prohibition of dis- construing ageing as a one-way process is to crimination in order to preserve a person’s avoid a reverse process in terms of legal guar- dignity. At the lower end of the age ladder, antees of equal rights and equal dignity. The the sub-groups are “the under-age” (children) child also has rights and dignity and these be- and “young adults”, while at the upper end, come full when the child reaches full age. The the sub-groups are the elderly in working age dignity of the adult remains full and intact un- and the elderly in the “fourth age”. Obviously, til the end of life. no clear age limits may be set between both the age groups and sub-groups; the border- Fourth, at the international level, there is lines must be left to the individual attributes a need to adjust legal instruments to the changed perception of human rights, equal rights and the rights of the elderly. Similarly abolishand inclinations, discrimination. in order The toexception avoid artificial here is to the more recently “discovered” rights of thestereotyping group of thatyoung would persons, confirm where rather the thanbor- categories of persons such as children and derline between full age and under-age ought the disabled, the rights of the old need to be to be set by formal rules.

Third, while everyone is ageing, and social mightrecognised promote through a more the adoption uniform ofconcept a specific of and economic advantages and disadvantages ageconvention. discrimination The clarification and a consensus of key concepts on related legislation. naturemay fluctuate of age explains, with age, in this part, cannot the lack make of In Europe, the increasing human rights edge symmetry“age” a relative in the and concept fluctuating of age concept. discrimina This- of the application of the RESC may promote tion and, consequently, the permissibility of a progressive concept of age discrimination. reverse discrimination: the prohibition of dis- Although this article has expressed some con- crimination does not necessarily prohibit un- cerns with the application of the EU Frame- favourable treatment of the younger in favour and application may be expected in due between the vulnerabilities of young persons coursework Directive, from the ajurisprudence clarification of theits conceptsCJEU. of the older. There are significant differences

1 Csilla Kollonay Lehoczky is Professor of Law at Central European University (Budapest) and member of the European Committee of Social Rights at the Council of Europe.

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2 Butler, R., “Age-ism: Another Form of Bigotry”, Gerontologist, Volume 9, 1969, p. 243. 3 Committee on Economic Social and Cultural Rights, General Comment No. 6 “The Economic, Social and Cul- tural Rights of Older Persons”, 12 August 1995, Doc. E/1996/22, Para 1; see also Fredman, S., Spencer, S., Age as an Equality Issue, Hart, 2003, pp. 3-4; Lahey, J., “State Age Protection Law and the Age Discrimination in Employ- ment Act”, Journal of Law & Economics, Volume 51, 2008, p. 433. 4 The lists of prohibited grounds are identical in the Universal Declaration of Human Rights and the two UN Covenants and include race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (Article 2 UDHR, Articles 2(1) and 26 ICCPR and Article 2(2) ICESCR). 5 While some conventions set age limits for certain situations, without a general provision permitting age- based differentiation, Article 23 of the American Convention on Human Rights indicates age as a ground that might establish exceptions from the rights enumerated in that article. In other words, it permits differentiation on the basis of age for national legislations. 6 These two conventions prohibit discrimination on the same grounds, except that the RESC includes one additional ground, health. 7 De Schuetter, O., “The Prohibition of Discrimination under European Human Rights law, Relevance for the EU Non-Discrimination Directives – An Update”, European Commission, 2011, p. 15, available at: http://www. - . ab.gov.tr/files/ardb/evt/1_avrupa_birligi/1_6_raporlar/1_3_diger/human_rights/prohibition_of_discrimina8 Ibid. tion_under_european_human_rights_law.pdf 9 Andrle v the Czech Republic, Application No. 6268/08, Judgment of 17 February 2011, European Court of Human Rights. The case related to pension age and the Court found no violation of Article 14 of ECHR. The di- vorced applicant got custody of his two children, aged 13 and 15, and cared for them until they reached the age of majority. His early retirement pension request, based on the right to have a lowered retirement age according to the number of children, was dismissed, since only a woman’s retirement age could be lowered. His complaint regarding discrimination with respect to his property rights was dismissed by the Court. 10 B.B v The United Kingdom, Application No. 53760/00, Judgment of 10 February 2004, European Court of Human Rights. In this case the applicant claimed that he was discriminated against on grounds of his sexual orientation by the existence of, and by his prosecution under, legislation that made it a criminal offence to engage in homosexual activities with men under the age of 18 whereas the age of consent for heterosexual activities was - sion to prosecute him while failing to prosecute the 16-year-old boy who would technically have been as guilty as fixedhe was at of16 the years same of age.offence. He also Assessing complained the case that and he drawing was discriminated on the case against of Sutherland on the groundsv United ofKingdom age by (Applicathe deci - tion No. 25186/94, Judgment of 27 March 2001) the European Court of Human Rights found a violation of Article 14 of the Convention in conjunction with Article 8 for discrimination on the grounds of sexual orientation (also a non-listed ground). The Court did not consider it necessary also to consider the complaint of age discrimination.

12 W.M. Brooks v Netherlands, Communication No. 172/1984, UN Human Rights Committee, 29th session (1987).11 As See of ERTAugust summary, 2013, 18 available countries at: out http://www.equalrightstrust.org/view-subdocument/index.htm?id=322 of the 47 member states of the Council of Europe had ratified it. . 13 A further step forward was the case of Kavanagh v Ireland, Communication No. 819/1998, Views of 4 April 2001, in which the Human Rights Committee interpreted Article 26 of the ICCPR, which guarantees the “right to equality before the law and to the equal protection of the law”, as implicitly suggesting that it is not necessary to

14 Pub. L. No. 90-202 Code, 29 U.S.C. § 621. identify any specific ground for discrimination. 15 The prohibition of age discrimination is limited to employment, similarly to discrimination based on religion, disability and sexual orientation, and in contrast to race discrimination which is prohibited in the broader area of work, education, social security, public services and business services, and to sex discrimination, which is also prohibited in the provision of services. 16 The genuine and determining occupational requirements – an exception for all kinds of discrimination – is supplemented here with the “public security” exception in Article 2(5), i.e. discriminatory measures in respect of grounds under the Directive are permitted if necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and free- doms of others. The “armed forces” exception in Article 3(4) exempts from disability and age discrimination. In and occupational social security schemes. 17addition, This age-specific was clearly justification manifested inis permittedthe multiple in referencesArticles 6(1) in ageand discrimination 6(2), with reference cases to to earlier employment gender policiesdiscrimi - nation cases. See, for example, Case C-476/99 Lommers v Minister van Landbouw, Natuurbeheer en Visserij, 2002, referred to in Case C-144/04 Mangold v Helm, 2005, and the Marshall and another case referred to in Case C-411/05 Palacios de la Villa v Cortefiel Servicios SA, 2007. Similarly, the experience from Case C-15/96 Schöning-Kougebeto- poulou, 1998, which was a nationality discrimination case, was relied upon as a basis for the new ground. 18 Council Directive 2000/78/EC,

Official Journal L 303, 2 December 2000, pp. 16-22.

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the main grounds. This approach is similar to D. Shiek’s “nodes” approach but differs by setting up a hierarchy: 1. Race, 192. Sex, 3.See Religion, the classification and 4. “Others”. of discriminat Accordingory to grounds this approach, by Ruth age ben is Israel categorised in 1993 together establishing with disability,families centred the recogni around- tion of both rising in the 1980s. See Ben-Israel, R., “Equality and Prohibition of Discrimination in Employment”, in Blan- pain, R. (ed.), Comparative Labour Law and Industrial Relations in Industrialized Market Economies, Kluwer, 1998, pp. 254-259. 20 2010/C 83/02. 21 Kochenov, D., “On Options of Citizens and Moral Choices of States: Gays and European Federalism”, Ford- ham International Law Journal, Volume 33, 2009, p. 174. 22 Olivier de Schuetter sees hierarchy in European human rights law as a fact, without negative or positive comments. See above, note 7, pp. 5 and 14-16. 23 As it was presumably intended by the EU legislation. 24 Freedland, M., Vickers, L., “Religious Expression in the Workplace in the United Kingdom”, Comp. Lab. L. & Pol'y J, Volume 30, 2009, pp. 621-622. 25 Schiek, D., “Organising EU Equality Law around the Nodes of ‘Race’, Gender and Disability”, in Schiek, D., and Lawson, A., (eds.), EU Non-Discrimination Law and Intersectionality: Investigating the Triangle of Racial, Gen- der and Disability Discrimination, Ashgate, 2011, p. 26. 26 Convention C 138 (1973) concerning Minimum Age for Admission to Employment, supplemented by R 146 – Minimum Age Recommendation 1973 (No. 146). 27 European Social Charter (Revised), Strasbourg, 9 May 1996, Article 7(1). 28 Ibid., Article 7(2). Under the 1961 Charter, this minimum age was 16. 29 Age is only mentioned in the Universal Declaration of Human Rights in Article 16(1) which declares the right of men and women of full age to marry. 30 Especially in the areas of reproductive freedom, consump- tion, driving, etc. 31 While international and national rules on minimum ages and the substantive limitations of the autonomy and free choices of the individual also raises questions, in part addressed by the UN Convention on the Right of the Child, the analysis of these limitations with regard to eventual discriminatory elements goes beyond the scope of this article. 32 Race discrimination likely falls into this category as well. 33 MacKinnon, C., “Difference and Dominance: On Sex Discrimination”, in Bartlett, K.T. and Kennedy, R. (eds.), Feminist Legal Theory, Westview Press, 1991, pp. 90-91. 34 Ibid., p. 85. 35 See Fredman, S., above note 3; see also O’Cinneide, C., “Comparative European Perspectives on Age Dis- crimination”, in Fredman, S., and Spencer, S. (eds), Age as an Equality Issue, pp. 195-218, especially pp. 214-215; Australian Human Rights and Equal Opportunity Commission, Canberra, May 2000; and Ontario Human Rights Commission, Discrimination and Age: Human Rights Issues Facing Older Persons in Ontario, Toronto, 2000. 36 The phrase became famous and much cited as a footnote by Justice Stone to an 1938 US Supreme Court case (United States v Carolene Products Company, 304 U.S. 144 (1938)) - ened scrutiny” of legislative acts. 37 Individual examples of members of any discriminated group reachingdefining high the status grounds in society for so calleddo not “height evidence the lack of social exclusion or group disadvantages. 38 While statistical categories are based on predominant pension ages (60-65 – forecast to go higher), their regulatory origin nonetheless is apparent. The category for which equal treatment outside employment is increasingly needed due to increasing disadvantages, called in some cases the “fourth age”, is assessed to start from 80. (See Committee on Economic, Social and Cultural Rights, above note 3, Para 9.) 39 Simitis, S., “Denationalizing Labour Law: The Case of Age Discrimination”, Comparative Labour Law Journal, Volume 15, 1994, pp. 233, 238 referring to the collective versus individual approach as a difference between EU and US law; see also Suk, J., “From Antidiscrimination to Equality: Stereotypes and the Life Cycle in the United States and Europe”, American Journal of Comparative Law, Volume 60, 2012, p. 76. 40 US ADEA, 29 U.S.C. §§ 621 ff. 41 Ibid., Congressional Statement of Findings and Purpose, § 621(a). 42 Ibid., § 621, section 2(a)(1)-(3). 43 This Directive protects against discrimination on several grounds – religion, disability and sexual orientation besides age, and the exceptions had to be adjusted to all these grounds. Therefore, in addition to the “genuine and determining occupational requirement” exception, which is very similar to the BFOQ defence, the Direc- tive sets up further exceptions not prescribed for sex and race. See above, note 18.

44 The term “employee” does not cover persons in elected public offices or persons chosen by them, fire-

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45 Lahey, above note 3, p. 434. fighters, and law enforcement officers. (29 U.S.C. § 630(b)(1) and (2), (i), (j) and (k).) and entitlements on the enforcement of Title VII, in addition to ADEA and other pieces of anti-discrimination 46 legislation. The EEOCIts powers was established include submitting on the basis lawsuits of Title for VII alleged of the victims Civil Rights of discrimination. Act 1964 and It has can significant also (but relatively powers rarely does) prosecute cases. 47 Similarly to persons with disabilities, whose discrimination on the basis of their disability was declared unlawful by the Americans with Disability Act 1990. 48 See above, note 40, Section 11(b). 49 The Hungarian Constitutional Court – in Decision No.49/2009 (III. 27) AB – declared unconstitutional the Labour Code provision setting different (less favourable) norms on compensation for damages to employees caused by the employer, where the latter was a private individual employing less than ten persons. The Consti- tutional Court reasoned that neither the difference between a private and a corporate employer nor the number of the employees prove weaker economic power or greater vulnerability, and therefore the distinction between categories of employees unconstitutionally violated the right of each person of equality before the law and equal dignity. Even if the right to compensation for damages is not a fundamental right, the unequal treatment violates the Constitution if the reasons for the measure do not proportionately justify the differentiation. 50 Directive 2000/43/EC (on race and ethnic discrimination) and Directive 2000/78/EC (on discrimination in employment on grounds of religion, disability, age and sexual orientation), were both adopted on the basis of the authorisation in Article 13 of the Amsterdam Treaty. 51 See above, note 25, pp. 16-17. 52 Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG, 19 January 2010. 53 See above, note 25, pp. 16-17k. 54 Case C-303/06 S. Coleman v Attridge Law and Steve Law, 17 July 2008. 55 See above, note 25. 56 A survey in the mid-1980s has shown that 76% of US ADEA claims were based on termination, 9% on refusal to be hired, demotion made up 6.6% and non-promotion made up 6.3% of the cases. Compensation and

Reverse Age Discrimination and the ADEA”, University of Pittsburgh Law Review, Volume 65, 2004, p. 376. She benefitsquotes Issacharoff, cases were S. altogether and Harris, 1.9%. E.W., (See “Is AgeSchuchmann, Discrimination A.L., “The Really Special Age Discrimination?: Problem of the Younger The ADEA’s Older Unnatural Worker: Solution”, N.Y.U. L. REV been predicted by the original legislators and are inconsistent with the original intent of the ADEA”. 57 See above, note ,45, Volume pp. 438-439. 72, 1997, pp. 780 and 783: “[t]he numbers are in complete conflict with what had 58 Ibid. 59 Ibid., p. 435. 60 ADEA, Section 7(b), 81 Stat. 604, 29 U. S. C. § 626(b). 61 McDonnel Douglas v Green, 411 U.S. 792 (1973). 62 See on the courts’ application of the “McDonnel Douglas” test Zisk, N.L., “What Is Old Is New Again: Understand- ing Gross v. FBL Financial Services, Inc. and the Case Law That Has Saved Age Discrimination Law”, Loyola Law Review, Volume 58, 2012, pp. 799, 818; see also Hartzler, K.J., “Reverse Age Discrimination under the Age Discrimination in Employment Act: Protecting All Members of the Protected Class”, Valparaiso University Law Review, Volume 38, p. 232. 63 Smith v City Of Jackson, 544 U.S. 228 (2005). 64 Ibid., Paras 233, 240. 65 Congress’ aim in introducing the 1991 amendment of Title VII was to help plaintiffs bring their claim to court even when there were legitimate grounds behind the employer’s action in addition to the grounds enumerated in Title VII. See Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(m) (2012). As amended, Title VII allows an employer to limit, but not escape, liability by showing that it would have made the same decision “in the absence of the imper- missible motivating factor”. 66 Gross v FBL. Financial Services, 129. S.Ct.2343 (2009). 67 Price Waterhouse v Hopkins, 490 U.S. 228 (1989). 68 See above, note 66, Para 169. 69 In reaction to the Gross v FBL decision, several senators introduced a bill to amend ADEA and other laws “to clarify appropriate standards for Federal employment discrimination and retaliation claims”. The bill is still pending. On 30 July 2013 it was assigned to a congressional committee, which will consider it before possibly sending it on to the House or Senate. It is available at: http://www.govtrack.us/congress/bills/113/hr2852.

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70 See above, note 52; see also C-88/08 David Hütter v Technische Universität Graz, 18 June 2009. 71 The issue of reverse age discrimination is noticeably less addressed in the literature than old-age discrimination. Schuchman’s brief summary of ADEA reverse discrimination case law draws strongly on the thorough analysis of that case law. (See Schuchmann, above note 56, pp. 339-384.) 72 Karlen v City Colls. of Chicago, 837 F. 2d 314 (CA7 1988). 73 Ibid. See also Schuchmann, above note 56, p.342. 74 Ibid. 75 Hamilton v Caterpillar Inc. 29 C.F.R. § 1625.2(a) (1991). 76 General Dynamics Land Systems, Inc. v Cline, 540 U.S. 581 (2004). 77 Ibid., p. 581. 78 36873 Federal Register, Volume 72, 6 July 2007. 79 See Schuchman, above note 56, p. 377. 80 On this traditional model of solidarity see Zacher, H.F., “Traditional Solidarity and Modern Social Security – and Zacher, H.F. (eds.), Between Kinship and the State: Social Security and Law in Developing Countries, Dordrecht, 1993,Harmony pp. 458-459.or Conflict?”, Similarly, in Von no Benda-Beckmann, formal (expressed F., inVon percentage Benda-Beckmann, or otherwise) K., Casino, limits E., of Hirtz,ability F., or Woodman, disability G.R.were known. Everyone contributed as far as they were able. without income, depending on the social security regime. 82 81 IfEither for no in other the form reason, of “earned” then to avoidinsurance excess pension, burden or on a thesocial relevant benefit community established funds for old and members also to avoid of society - zarre and as discriminatory as mandatory retirement. eventual abuse. Furthermore, even if individual fitness could be exactly measured, such a system would be bi - 83 Retirement age as a just reason to terminate employment has significance only in legal systems where the employeeguaranteeing is protected among others against the unjustified right to just termination. reason when The dismissed employment-at-will – had a tremendous system of role the inUS the has development given partic ularof mandatory significance retirement to the regulation regulation, of ageas it discrimination, became problematic and this under is why ADEA. the US collective bargaining agreements – 84 Indeed, there are professions (e.g. recently, the medical profession in some countries including Germany, scarcity of professionals and retaining, rather than dismissing, the elderly would be important. As to health and Hungarysafety risks, and these Romania) vary widely where inthere the aredifferent not enough industries, younger and personsit is in a tosmall fill thenumber vacated of areas posts; where or there the is risk clearly or a danger might be real at all, aside from the false presumptions regarding the capacities of individuals.

The 85 three worlds The differences of welfare betweencapitalism the, Polity American Press, and Cambridge, European 1993.) mandatory retirement systems fit nicely with the classification of welfare regimes by Gǿsta Esping-Andersen in his seminal book. (See Esping-Andersen, G., forced termination of the employment relationship, similarly to the French Cour de Cassation that clearly saw man- 86datory Seeretirement Simitis, clausesS., above as note nothing 39, p. but 327, a form on the of Germandismissal Constitutional on the ground Court of an clearly assumed affirming reduction the invalidity capacities. of 87 In the more developed regions of the world, the population aged 60 or over is expected to increase at 1% annually before 2050 and 0.11% annually from 2050 to 2100. It is expected to increase by 45% by the middle of the 21st Century, rising from 287 million in 2013 to 417 million in 2050 and to 440 million in 2100. (World Population Prospects, “The 2012 Revision – Key Findings and Advance Tables”, Economic and Social Affairs, United Nations, 2013.) 88 Western Airlines, Inc. v Criswell, 472 U.S. 400, p. 422 (1985). The case was decided by an undivided court, not too frequent an event in the practice of the Supreme Court. 89 Ibid., pp. 412-417. 90 Ibid., pp. 418-420. 91 See O’Cinneide, above note 35, pp. 9 and 37; Suk, above note 39, pp. 93-95. 92 By this token, the change of Article 8(1) requiring the provision of “mandatory” maternity leave of at least 14 weeks is to be mentioned. Julie Suk associates mandatory retirement with mandatory maternity leave regulations in her critique and comparison between the European and US regulatory attitudes. (See Suk, above note 39.) The statement of interpretation on Article 8 (1) in the introductory part of the 2011 Conclusions of the parties to guarantee the 14 weeks and a minimum six weeks post-natal leave, this has only to be “mandatory” in Europeanthe sense ofCommittee the entitlement of Social of Rightsthe mother. moves However, away from she the must fifty-years-old have a free choice approach to return, and, while when obliging she wishes, states to the workplace, provided that the legal environment (strong protection against dismissal or transfer) and the level of the maternity benefit together guarantee that the option to continue working is entirely a free choice of the

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mother. (See European Committee of Social Rights, Conclusions 2011, available at: http://www.coe.int/t/dghl/ ) 93 These are in part discriminatory, in part otherwise abusive grounds. The Appendix does not mention discrimi- monitoring/socialcharter/Conclusions/State/GenIntroConclusions2011_en.pdf.nation. The reasons that cannot be valid reasons are the following: (a) trade union membership or participation in

unionin proceedings activities against outside an working employer hours, involving or, with alleged the consent violation of the of laws employer, or regulations within working or recourse hours; to (b)competent seeking adminoffice - as,istrative acting authorities; or having acted (d) race, in the colour, capacity sex, ofmarital a workers' status, representative; family responsibilities, (c) the filing pregnancy, of a complaint religion, or political the participation opinion, national extraction or social origin; (e) maternity or parental leave; (f) temporary absence from work due to illness or injury.

95 European Committee of Social Rights, above note 92, p. 10. 94 It was first assessed in the 2002 cycle for only five countries. By 2012 it concerned 26 countries. 96 Armenia, Azerbaijan, Bulgaria, Ireland, Malta and the Netherlands. 97 Collective Complaint No. 74/2012, case documents available at: http://www.coe.int/t/dghl/monitoring/

98 See Suk, above note 39. socialcharter/Complaints/Complaints_en.asp. - pensation model that requires administration. (See Alon-Shenker, P., “The Unequal Right to Age Equality: Towards a Digni- 99 A similar view is reflected in the “DignifiedCanadian Life Journal Approach” of Law presented and Jurisprudence by Alon-Shenker,, Volume supporting 25, 2012, app. deferred 281-282. com

fiedshowing Lives theApproach increased to Age importance Discrimination”, of human rights in the employment and social area: the right to equal treat- ment100 without The 1988 regard Additional to sex, Protocolthe right supplemented to be informed the and European consulted, Social the right Charter to take with part four in significant decision making rights, on working conditions, and last but not least the right of every elderly person (here not “worker”) to social protection. (See Additional Protocol to the European Social Charter, Strasbourg, 5 May 1988.) 101 This was based on the UN Principles for Older Persons adopted by the General Assembly in 1991, charac- terised by a lack of regulatory content and broad coverage, including both persons in working ages and beyond.

be a “full member”, “since (...) the right (...) is not (...) depending on whether an elderly person has retired or is still 102vocationally The Explanat active”. ory(See Report Additional on Article Protocol 1 of to the the Protocol European clarifies Social this, Charter: explaining Explanatory that the Report, elderly ETS have No. the 128, right Para to 54.) 103 See above, note 3, section 9; see also Barnes, S.F., “The Final Years of Adulthood”, San Diego University, available at: http://calbooming.sdsu.edu/documents/TheFourthAge.pdf. 104 Of course, age 65, the standard pension age, has relevance as much as someone unable to work and showing symptoms characteristic of the fourth age is considered unable, and not “fast-ageing”. 105 And not only with the help of modern medical technology; well-known is the age-stereotype destroying example of Dandolo, Doge of Venice, who, in 1204, at age 90 and blind, took part in the fourth crusade against Constantinople, leading the Venetian contingent. 106 With regard to the “optional” character of the RESC that permits state parties to ratify only certain articles or certain paragraphs within articles, Article 23 separates its paragraphs by bullets instead of numbered paragraphs, so that states have to ratify (or not ratify) the whole article. (See above, note 27, Article 23.) 107 See above, note 27, Article 23, bullet 1. 108 Ibid., Article 23, bullet 2. 109 Ibid., Article 23, bullet 3. This article was adopted together with the preceding article, now Article 22 of the RESC, originally Article 3 of the Additional Protocol of 1988. The vocabulary underlines the identical approach: as workers are entitled to participate in decisions determining their working conditions and working environment, similarly, elderly persons living in institutions are entitled to participate in decisions determining their living conditions in the institution. 110 European Committee of Social Rights, Conclusions Cycle XIII-5, Statement of Interpretation in Article 23, p. 455. 111 European Committee of Social Rights, Conclusions 2003, for example on France, p. 186; and Conclusions 2005, Sweden, p. 711. 112 European Old People’s Platform, Building the case for more action at European level to combat age discrimination in access to goods, facilities and services, 2007, available at: http://www.age-platform.eu/images/stories/

113 Discrimination in employment on the ground of age is prohibited under Articles 1(2) and 24. Building_the_case_for_more_action_to_combat_age_discrimination_in_access_to_GFS_October_2007.pdf. 114 European Committee of Social Rights, Conclusions Cycle XIX-2 (2009), Sweden, pp. 778-779, 783. 115 Ibid., Conclusions Cycle XIX-2 (2009), Czech Republic, pp. 114-115, 119, Denmark, pp. 156-157, 161.

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