Age Discrimination: Law-Making Possibilities Explored
| DOI | 10.1177/135822910000400303 |
| Author | Helen Meenan |
| Date | 01 September 2000 |
| Published date | 01 September 2000 |
International .Tournai
of
Discrimination
and
the Law, 2000, Vol. 4, pp. 247-292
1358-2291/2000 $10
© 2000 A B Academic Publishers. Printed in Great Britain
AGE DISCRIMINATION: LAW -MAKING POSSIBILITIES
EXPLORED
HELEN
MEENAN*
Jean Monnet Chair in European Law, Kingston University, Surrey,
United Kingdom
ABSTRACT
Is there a sound model for the United Kingdom (UK) to adopt should it decide to
legislate against age discrimination in employment? In this article the writer
attempts to answer this question first, by outlining existing UK sex and race dis-
crimination laws and then progressing to an examination
of
long-standing Amer-
ican legislation and caselaw in this area. Finally, it explores the Irish Employment
Equality Act, 1998, a composite and comprehensive act which prohibits discrimina-
tion in employment based on
'age'
and eight other grounds. The strengths and
weaknesses
of
each
of
these laws are examined in
tum
and measured against each
other. The final analysis would suggest that each
of
these models can usefully
inform any future law-making process to a greater
or
lesser degree and that good
practice and legislation can co-exist in harmony. Moreover, the present lack
of
legislation in the UK against age discrimination in any area but especially employ-
ment, is remarkable when compared with British laws on sex and race discrimina-
tion and is ultimately unwise in the face
of
the real need for remedies and, the pre-
sent and growing expansion in numbers
of
that portion
of
the population and the
working population which British and European society call
'old.'
INTRODUCTION
'[Age discrimination] is a difference in treatment
and
opportunities
for
citizens solely on grounds
of
their chronological age' -Eurolink
Age, UK, 1997.
We
live in a time
of
increasing mobility and globalisation espe-
cially in the fields
of
work and commerce. These are hallmarks
of
our
modem
fast-moving, ever-evolving environment and have been
made possible by advances in information technology (IT).
Our
IT
entrepreneurs are mostly young and becoming younger still. They
seem to revolutionise the world in their twenties and sell their com-
panies in their thirties, some then retire. Society's view
of
older
workers today cannot avoid being informed by the profile
of
workers
248
in the
IT
sector which is partly responsible for how
we
view older
workers
and
at what increasingly early stage in life
we
regard a
worker as being older, old
or
sadly too old. Workers in the
UK
do
not have the benefit
of
statutory protection against age discrimination
in any area
of
life, not even employment.
It
is therefore a confusing
time for British workers. This confusion is compounded by the fact
that the
UK
government has taken steps to deal with age discrimina-
tion in employment by means
of
a voluntary
and
educative policy
and
not through legislation.12 This is a part acknowledgment that the
problem exists and means that age discrimination will be self-
regulated but only by those British employers who chose to tackle
this problem.
In
a previous article, the writer highlighted the defects in the
British approach, which starkly include a lack
of
enforcement
or
a
remedy for victims and asked the question
if
legislation would be
preferable.
3 She also outlined the necessity for age discrimination
laws based inter alia, upon European Community research which
revealed that older British people seeking work in the past decade,
faced significant discrimination from employers, the coming demo-
graphic changes which will result in a considerable increase in the
number
of
older people in the British population, the intrinsic value
of
older workers, business reasons for retaining them and the need to
protect them as they will be a valuable source
of
labour in the future.
The
purpose
of
the present article is to outline
and
explore some
models which the
UK
could examine or, follow
if
it decided to intro-
duce legislation on age discrimination in employment
and
to inform
and
stimulate thought in this area; not to advocate any one model
over another.
The
writer is not alone in seeing a
need
for age discrimination
laws in the UK, for instance the
Law
Society
of
England and Wales
(the
Law
Society) has studied this issue
and
has concluded that legis-
lation for this area could be workable
and
effective
and
should be
based
on
existing race and sex relations laws4•
It
is therefore fitting
that this article commence with a brief examination
of
the concept
of
discrimination and the mechanisms for protection under the Sex Dis-
crimination Act, 19755, as amended
and
the Race Relations Act,
1976, as amended (hereinafter the
SDA
and
RRA, respectively).
The
question must
be
asked whether it would be appropriate to use these
as a model for laws
on
'ageism,'
given that it is a uniquely pervasive
form
of
discrimination which
can
potentially affect any or, every
member
of
the population at some time in their working lives and,
the fact that
we
are all constantly aging?
In
the meantime, the
absence
of
any age discrimination law also means that there is
no
legal definition
of
'age
discrimination' in the UK.
A further question must also be asked, whether there are suitable
249
alternative models to the
SDA
and RRA which deal specifically with
'ageism'
in employment?
The
US and Ireland are two countries in
the common law world with legislation outlawing age discrimination
in employment. Studying these models seriously6 could inform the
British Government's future choice whether to legislate or, not and
the form any legislation should take. Reasons why it is important to
debate the suitability
of
laws to protect workers from
'ageism'
include:
1) the fact that British and European populations are currently
aging7• This is coupled with a decline in the number
of
young people
and therefore, the number
of
young people available for the labour
market8• 2) It is well documented that the over 50s are more likely
to encounter ageism than any other group9• 3) Once an older worker
becomes unemployed it will be much more difficult for him
or
her
to re-enter the workforce10• 4)
The
UK
population is living longer
therefore, it will need to finance its extended life primarily through
work and, 5) despite longer life spans, British people are not neces-
sarily enjoying greater health in old age than their predecessorsu.
DISCRIMINATION UNDER
UK
SEX AND
RACE
RELATIONS
LAWS
The SDA and the
RRA
legislate against three types
of
discrimina-
tion: direct discrimination, indirect discrimination and victimisation
on the grounds
of
sex and race, respectively. Direct sex discrimina-
tion refers to a situation where a person treats a woman on the
grounds
of
her sex, less favourably than he treats or would treat a
man. Indirect discrimination covers the situation where a person
applies a requirement
or
condition to a woman which he also applies
to a man or, would apply to a man but fewer women than
men
can
fulfill, which cannot be justified on grounds other than sex and, is to
the
woman's
detriment.
Men
are also protected from sex discrimina-
tion by these provisions.
Victimisation occurs when a person treats the victim less favour-
ably than he treats
or
would treat another person, on the grounds that
he brought a case against the discriminator under the Sex Discrimina-
tion Act, 1975
or
the Equal
Pay
Act, 1970, has given evidence or,
done anything against the discriminator under these acts
or
has
alleged that the discriminator
or
another person has committed an act
which would contravene these acts.
The
SDA
prohibits sex discrim-
ination in employment at the hiring stage12, in the terms
of
employ-
ment offered, in refusing to hire, in opportunity for promotion, trans-
fer, training
or
benefits, dismissal
or
subjecting a woman to
'any
other detriment.'
13 It does however permit employers to discriminate
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