Age Discrimination Widely Sanctioned Internationally

GlobeThe epidemic of age discrimination in the United States is discouraging, at best, but  its not hard to find other developed countries that accord even worse treatment to older workers. 

The Jerusalem Post reports that the High Court of Justice in Israel recently upheld mandatory retirement at age 67. Israel’s high court agreed that mandatory or forced retirement harms older workers  (who are referred to as “elderly”) but said competing priorities overcome that harm, such as opening up jobs for younger workers.

The U.S. decided 50 years ago that mandatory retirement constitutes illegal age discrimination when it passed the Age Discrimination in Employment Act of 1967. However, the ADEA exempts significant segments of the workforce who can still be forced to retire, including public safety workers, high-ranking executives, elected officials, etc. And the practice of mandatory retirement effectively continues for millions of Americans through unofficial means,  such as a bogus reorganizations or reducation in forces and epidemic age discrimination in hiring.

Mandatory retirement is a form of government-sanctioned inequality that entitles employers to subject older workers to arbitrary, irrational and harmful discrimination.

Israel is not alone. 

The Universal Declaration of Human Rights (UDHR) states that “All are equal before the law and are entitled without any discrimination to equal protection of the law.” But older workers are less equal in many, if not most, developed countries.

The International Labor Organization  (ILO) requires its 186 member states  to eliminate employment discrimination on the grounds of sex, race, color, religion, political opinion, national extraction and social origin. Age is conspicuously absent. The ILO permits member states to add age discrimination if they choose

The European Union issued general prohibition against employment discrimination in 2000 but sanctioned age discrimination when it is objectively justified  by a legitimate aim and the means of achieving that aim are appropriate and necessary.  (Note: This actually is not very different from the ADEA, which permits “reasonable” age discrimination.) 

The 13-judge European Union Court of Justice in 2007 upheld mandatory retirement age age 65. The Court agreed that discrimination based on age is illegal but said  mandatory retirement could be justified by social policies such as improving employment for younger workers. Nevertheless, some EU countries, like the United Kingdom, have phased out mandatory retirement.S

Fortunately, at least one country – Australia – offers a positive and aspirational role model. 

Australia guarantees its older workers true equality under the law.

Australia adopted an age discrimination law in 2004 but it contained a higher standard of causation compared to other Australian anti-discrimination laws. Older workers were required to show that age discrimination was the “dominant reason” for an adverse employment action (i.e. dismissal, failure to promote.)  Australia decided on International Day of Older Persons in 2008 to bring its age discrimination law in line with other Australian anti-discrimination laws. The government called this move “a critical step toward achieving meaningful age equality within our community.” 

Ironically, while Australia was moving toward true equality for older workers, America’s highest court was taking a step backwards. The U.S. Supreme Court in 2009 imposed a higher standard of causation in age discrimination cases compared to most other types of discrimination, effectively adopting the “dominant reason” standard thrown out a year earlier by Australia.

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Author: pgb

Attorney at Law, author and blogger.

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