As George Leeson from the Oxford Institute of Population Ageing points out, western countries have been much slower to recognise the unfairness of age discrimination than to acknowledge discrimination on grounds of race or sex. Social or moral responsibility has been the main argument for anti-discrimination measures, but now there are also economic drivers in the form of labour and skills shortages, associated with population ageing. Does this mean that market forces can be relied upon to bring about measures to combat age discrimination? Probably not.
Anti-age Discrimination Law
Legislation to ban age discrimination has been enacted in many countries including in USA, Australia, Canada, New Zealand, Ireland, Finland, Germany, the Netherlands and Japan. Member states of the European Union (EU) were required to have legislation in place by end of 2006 to make age discrimination in employment and vocational training unlawful.
In the USA the federal Age Discrimination in Employment Act (ADEA) has been in effect since 1968. The original act prohibited discrimination on the basis of age for people aged 40 to 65. Subsequent amendments raised the upper age limit to 70 and then eliminated it altogether, ending mandatory retirement for nearly all workers.
In Australia compulsory retirement was abolished in the commonwealth public service in 2001. The federal Age Discrimination Act was passed in 2004; the Fair Work Act in 2009 and there are relevant provisions in various states.
In the UK, 2006 regulations made it illegal for an employer to force anyone to retire on the grounds of age before they were 65, but the retirement age was fully abolished under the Employment Equality Regulations 2011. The Equality Act 2010 codified numerous Acts and Regulations, which formed the basis of anti-discrimination law, implementing the EU directives.
In New Zealand the Human Rights Act (HRA) came into effect in February 1999. Section 22 forbids employers from discriminating against suitably qualified job applicants on a number of grounds, including age. Its provisions apply to all aspect of employment – recruitment, selection, remuneration, training, promotion, transfers, retirement and termination, and outlaws compulsory retirement.
Is the law effective in combatting discrimination?
The American legislation may have boosted employment rates for workers aged 60 plus, reducing arbitrary dismissals, but there is evidence of continued age discrimination in hiring and promotion. Some critics have pointed to unintended consequences – the law may be a deterrent to employ older workers who can’t be fired without risking litigation.
In the UK, Metcalf and Meadows surveyed employers before and after the new enactments. They found some progress. But the improvements for older workers were mainly in larger establishments and the public sector and short term market pressures still often trumped equality goals.
In New Zealand, the 1999 legislation certainly outlawed compulsory retirement, but did not appear to have an immediate effect on age discrimination. Research carried out through the EEO Trust, soon after the HRA came into effect, found that 42% of employers said the legislation had had no influence, and 42% some or a little. Later reviews of the law found widespread non-compliance.
Critics of anti-age discrimination legislation believe that it does not change employers’ behaviour, simply leads to more subtle ways of discriminating. It may just send ageism underground. Often there is a higher prevalence of discrimination found in population-based surveys than among formal complaints. Workers may be ignorant of the complaints procedure and/or do not trust it. They may feel that the incidents are not serious enough and lower paid and lower status workers may worry about job security.
In 2013 , I asked my informants how they thought the New Zealand anti-age discrimination legislation was working. There was a general view that it is working well as far as it can, given the difficulty of pinning down specific cases. Several agreed that if penalties were increased this would send the behaviour further underground:
“It is very complex cultural and social behaviour”.
“Law doesn’t solve things; people need reasons for doing things.”
They agreed that legislation is needed as a sanction and a clear statement that age discrimination is not to be tolerated.
“We need traffic rules to deal with worst cases, but law is not a solution.”
Other legal measures
There may be scope for tightening up and clarifying anti-discrimination legislation or for using other employment law to deal with the problem. Suggestions arising in my research included use of the employment court and anti-discrimination measures in industrial agreements. Another suggestion was to use “good employer” and EEO requirements. Good Employer provisions currently apply only in the state sector, through the Crown Entities Act 2004, the State Sector Act 1998 and the Local Government Act 2002, but these do not encompass age (only women, Māori, and people with disabilities are specifically mentioned). Could good employer provisions with measures against age discrimination be extended to the private sector? Should the onus be on employers to show that their hiring practices are not discriminatory? The predictable counter argument, from business, is certain to be that further and tighter regulation would slow down economy and overload employers with compliance costs.
If legislation is not the total answer, what other measures could be used to combat age discrimination? Some ideas next time.
Dr Judith A. Davey
Age Concern New Zealand voluntary policy advisor
Senior Research Associate, Institute for Governance and Policy Studies, Victoria University of Wellington