Age discrimination before the ECJ - Conceptual and theoretical issues

Although only addressed by EU law from 2000, age discrimination has been the theme of quite a few cases before the Court of Justice, with a high proportion decided by the Grand Chamber recently. This is due to the conceptual and theoretical challenges that a prohibition to use age as differentiating factor poses. After all, age has been an important stratifier used to synchronize life courses through welfare State regimes in Europe. Partly due to these traditions, there are stereotypes associated with old age, and young age, that in turn lead to disadvantage in employment. For the same reason, age discrimination frequently intersects with discrimination on other grounds, such as sex, race or disability. EU legislation on age discrimination has sought to accommodate the traditional role of age in employment policy by allowing wider justifications than for other forms of discrimination. This leads to contradictions within the larger field of discrimination law, which may even threaten to dilute its efficiency. This article analyses how recent case law of the Court of Justice, and in particular its Grand Chamber, deals with the theoretical challenges posed by these conflicting demands on age discrimination and on discrimination law at large.

Proportionality in Age Discrimination Cases - a Model Suitable for Socially Embedded Rights

This chapter discusses the use of proportionality in age discrimination cases before the Court of Justice of the European Union. It argues that the Court does not use this concept systematically - indeed it exposes some contradiction that make the case law seem arbitrary - and proposes a more fruitful use of the principle, which is in line with a modern conception of human rights. The chapter argues that the principle of proportionality stems from the time when human rights served the recently liberated burgeois elite in guarding their rights to property and liberty against the state. Today, states not only respect human rights (which is fully sufficient for this elite, who can rely on their inherited wealth to fend for themselves). They also protect and promote human rights, and these activities are a precondition for human rights to be practically relevant for the whole population. This also means that state activity, which is experienced as a limitation of rights to property and liberty by some, may constitute a measure to promote and protect human rights of others. In employment law - the only field where the EU ban on age discrimination is applied - this is a typical situation. If such a situation occurs, the principle of proportionality must be applied in a bifurcated way.It is not sufficient that the limitation of property rights is proportionate for the achievement of a public policy aim. If the aim of public policy is to enable the effective use of human rights, the limitation of the state action must be proportionate to the protection and promotion of those human rights. It is argued that the principle of proportionality is superior to less structures balancing acts (e.g. the Wednesbury principle), if it is applied both ways. Going over to the field of age discrimination, the chapter identifies a number of potentially colliding aims pursued in this field. Banning age discrimination may relate to genuine aims of anti-discrimination law if bias against older or very young workers is addressed. However, the EU ban of discrimination against all ages also serves to restructure employment law and policy to the age of flexibilisation, replacing the synchronisation principle that has been predominant for the welfare states of the 20th century. The former aim is related to human rights protection, while the latter aim is not (at least not always). This has consequences for applying the proportionality test. The chapter proposes different ways to argue the most difficult age discrimination cases, where anti-discrimination rationales and flexibilisation rationales clash

Is childhood a 'disability'? Exploring the exclusion of children from age discrimination provisions in the Equality Act 2010

The Equality Act 2010 was enacted with the aim of simplifying existing equality legislation and included extending age discrimination protection beyond the workplace to cover the provision of goods, facilities and services. Under-18s, however, were omitted from such provisions, despite lobbying from a number of different organisations and parliamentarians. This article considers the significance of this exclusion. It both challenges the legitimacy of the decision to exclude children, and considers the difficulties that arise from including under-18s within age discrimination provisions, namely those relating to children’s autonomy, capacity and right to equal treatment. In particular, it asks whether the question of children’s capacity to make decisions, the main ground on which children are denied all the human rights enjoyed by adults, should be revisited in light of the adoption of the Convention on the Rights of Persons with Disabilities, under which a finding of incapacity on the basis of disability constitutes discrimination. It goes on to explore other areas of convergence between childhood and disability studies, and particularly the benefits, and shortcomings, of a ‘social model’ approach to childhood.

Youth justice reform: redressing age discrimination against children?

This article considers whether the system of reprimands and final warnings in the youth justice system in England and Wales constitutes age discrimination for the purposes of human rights law. Whilst much youth justice discourse has addressed the use of diversionary measures that steer children away from formal justice processes, little attention has been paid to measures which negatively discriminate against children, in comparison to adults, without reasonable justification. The discussion contextualizes the issue within discourses on the sociology of childhood and youth justice, and considers why there is a general reluctance to recognize children as ‘victims’ of age discrimination.

The eradication of compulsory retirement and age discrimination in the Australian workplace : A cause for celebration and concern

Earlier this year the Age Discrimination Act 2004 was passed by the Commonwealth government. This paper provides an overview of the Age Discrimination Act 2004 and critically examines whether it is likely to be successful in eradicating compulsory retirement and age discrimination within the workforce. Empirical studies suggesting that law reform alone is insufficient to eliminate ageist employer behaviour are discussed as is the need for public awareness campaigns. Given that compliance with the law is closely linked with normative belief, this paper also considers whether a moral duty to refrain from age discrimination can be grounded within the natural law ethic.

Age discrimination in the evaluation of job applicants

This study investigated the nature of age discrimination against older job applicants. One hundred fifty-six participants (102 students; 54 organization based) evaluated a hypothetical job applicant's (aged 33–66 years) work-related competences and likelihood of being hired. Applicant age affected hiring decisions for both samples where there was a preference for hiring applicants aged 42–48 years. Applicants at both the older and younger ends of the continuum were less likely to be hired, with the oldest applicants (over 54 years) being the least likely to be hired. Although the applicants' age negatively affected evaluations of their trainability and sociability, the effect of applicant age on hiring evaluations was not mediated by these work-related competencies, suggesting that age discrimination occurs via direct bias against older workers.

The EEOC's performance in enforcing the Age Discrimination in Employment Act [microform] : hearing before the Special Committee on Aging, United States Senate, One Hundredth Congress, second session, Washington, DC, June 23, 24, 1988.

"Serial no. 100-24."

Final report to Congress on Age Discrimination in Employment Act studies : report to the Congress required by Section 5 of the Age Discrimination in Employment Act /

Mode of access: Internet.

Age discrimination in employment.

"This booklet was prepared ... by Jane Addams College of Social Work, University of Illinois at Chicago Circle ..."

Interim report to Congress on Age Discrimination in Employment Act studies : report to the Congress required by section 5 of the Age Discrimination in Employment Act /

"Prepared by Malcolm H. Morrison and Betty H. Roberts ..."--verso of t.p.

Age discrimination : use of waivers by large companies offering exit incentives to employees /

"April 1989."