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Published online by Cambridge University Press: 27 October 2017
In 2000 the European Community adopted the General Framework Directive aimed at combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation. This important measure followed closely on the heels of the Race Discrimination Directive adopted earlier in the year. The adoption of these measures was made possible after the Treaty of Amsterdam inserted a new Article 13 into the EC Treaty which empowered the Community to adopt measures to combat discrimination on the above grounds, as well as in the fields of sex, race and ethnicity. While Article 13 was greeted with much acclaim, doubts were expressed as to whether or not binding measures would be forthcoming. As it has turned out, such pessimism was unwarranted and the Community has now adopted measures aimed at eliminating discrimination on all the grounds specified in Article 13. The adoption of these directives is, therefore, a highly significant expansion of the Community’s competence and ensures the continued development of the Community beyond its original purely economic focus.
1 Council Directive 2000/78/EC of 27 November 2000 establishing a General Framework for Equal Treatment in Employment and Occupation, OJ 2000 L 303/16.
2 Race Discrimination Directive, 2000/43/EC, OJ 2000 L 180/22.
3 An examination of Community provisions relating to “age”, construed broadly, would include measures dealing with children and young workers, eg the Young Workers Directive, 94/33/EC OJ 1994 L 216/12, and Art. 32 of the EU Charter of Fundamental Rights on the Prohibition of Child Labour and Protection of Young People at Work, OJ 2000 C 364/1. This article, however, concentrates on age in the context of older people.
4 This is the title of the Commission’s recent Communication on age-related issues, Towards a Europe for All Ages—Promoting Prosperity and Intergenerational Solidarity, COM (1999) 221 final.
5 These trends are also common to some of the EU applicant countries, with the exception of Poland, the Slovak Rep and Cyprus where the working age population continues to grow. See Towards a Europe for All Ages above n 4 at 7.
6 Statistical data taken from Towards a Europe for All Ages, above n 4 at 4-8.
7 See further Desmond, H. “Older and Greyer—Third Age Workers and the Labour Market” 16 (2000) International Journal of Comparative Labour Law and Industrial Relations 235 CrossRefGoogle Scholar.
8 The annex to this paper attempts to set out a chronology of the Community and EU responses to the challenges of the ageing population and ageism. Note that the annex does not include all provisions relating to pension policy.
9 European Parliament Resolution on the Situation and Problems of the Aged, OJ 1982 C 66/71; Parliament Resolution on family policy in the EC—11 July 1983, OJ 1983 C 184/116.
10 Council Recommendation of 10 December 1982 on the principles of a Community policy with regard to retirement age, OJ 1982 L 357.
11 Commission Communication on the Elderly, 24 April 1990, COM(90) 80 final; Commission Proposal for a Council Decision on Community Actions for the Elderly, COM (90) 80 final, OJ 1990 C 120/8; Council Decision of 26 November 1990 on Community Actions for the Elderly, 91/49/EEC, OJ 1991 L 28/29; Commission Decision of 17 October 1991 of the Liaison Group on the Elderly, 91/544/EEC, OJ 1991 L 296/42; Council Decision of 24 June 1992 on the organisation of the European Year of the Elderly and of Solidarity between Generations, 92/440/EEC, OJ 1992 L 245/43; Council Decision 93/512/EEC of 21 September 1993 on a Community Technology initiative for disabled and elderly people (TIDE); Declaration of principles of the Council of the EU and the Ministers for Social Affairs meeting within the Council of 6 December 1993 to mark the end of the European Year of the Elderly and of Solidarity between Generations, OJ 1993 C 343.
12 Council Decision 91/49/EEC, OJ L 1991 28; Council Decision 92/440/EEC, OJ 1992 L 245.
13 Ginn, J. and Arber, S. “Gender, age and attitudes to retirement mid-life” 16 (1996) Ageing and Society 27 CrossRefGoogle Scholar.
14 Data cited in Desmond, above n 7 at 241.
15 ibid.
16 Campbell N. The Decline of Employment Among Older People in Britain, Centre for Analysis of Social Exclusion Paper no 19, at 40-42, referred to in Loretto, W., Duncan, C. and White, P. “Ageism and employment: controversies, ambiguities and younger people’s percep tions” 20 (2000) Ageing and Society 279, 281 CrossRefGoogle Scholar.
17 See further Duncan, C., Loretto, W. and White, P. “Ageism, early exist and British Trade Unions” 31 (2000) Industrial Relations Journal 220 CrossRefGoogle Scholar.
18 It has been argued in the UK context that the potentially adverse effects of “early exit” only became a real political concern with the impact of recession in the late 1980s and early 1990s upon previously secure middle class professional occupations. Before the adverse impact on the middle classes, it has been argued that “early exit” had been seen as a “necessary and socially acceptable means of coping with mass unemployment and structural change, mainly affecting manual employees”. Now, with it impacting on the middle class, it was seen as a “phenomenon deriving from age prejudice”. See Loretto et al, above n 16 at 282.
19 European Parliament Resolution on Measures for the Elderly, OJ 1994 C 77/24.
20 Council Resolution of 29 June 1995 on the Employment of Older Workers, OJ 1995 C 228/1.
21 Ibid.
22 See further Desmond, above n 7.
23 Towards a Europe for All Ages, above n 4 at 9.
24 Ibid.
25 The Oxford English Dictionary attributes the first use of the phrase “ageism” to American psychiatrist Robert Butler in the Washington Post in 1969, as cited and discussed in Loretto et al, above n 16 at 279-280.
26 Robert Butler, quoted in Loretto et al, above n 16 at 280.
27 Towards A Europe for All Ages, above n 4.
28 See Scrutton, S. “Ageism: the foundation of age discrimination”, in McEwan, E. (ed.) Age: the unrecognised discrimination (Age Concern, 1990 Google Scholar); Maguire, M. “Demographic Ageing—consequences for social policy” (OECD 1988)Google Scholar, discussed in Sargeant, M. Age Discrimination in Employment (Institute of Employment Rights, 1999) at 8-9Google Scholar.
29 Sargeant, ibid at 8-9.
30 Loretto et al, above n 16.
31 See Arber, S. and Ginn, J. Gender and Later Life (London, Sage, 1991)Google Scholar; Arber, S. and Ginn, J. (eds), Connecting Gender and Ageing: A Sociological Approach (Milton Keynes, Open University Press, 1995 Google Scholar).
32 Towards a Europe of All Ages, above n 4 at 5.
33 Itzin, C. and Phillipson, C. Age Barriers at Work: Maximising the Potential of Older and Mature Workers (Metropolitan Authorities Recruitment Agency, 1993) at 45 Google Scholar, reported in Loretto et al, above n 16 at 285 and see also the research data presented in Loretto et al, above n 16.
34 Itzin, C. “The double jeopardy of ageism and sexism: media images of women”, in Bromley, D. (ed), Gerontology: Social and Behavioural Perspectives (London, Croom Helm, 1984 Google Scholar).
35 Loretto et al, above n 16 at 299.
36 See COM (99) 565, 25.11.99, COM (99) 566, 25.11.99 and COM (99) 567, 25.11.99.
37 Above n 2.
38 For a general discussion of the Directive, see: Bell, M. “Article 13 EC: The European Commission’s Anti-Discrimination Proposals” 29 (2000) Industrial Law Journal 79 CrossRefGoogle Scholar; Waddington, L. “Testing the Limits of the EC Treaty Article on Non-Discrimination” 28 (1999) Industrial Law journal 133 CrossRefGoogle Scholar; Waddington, L. “Article 13 EC: Setting Priorities in the Proposal for a Horizontal Employment Directive” 29 (2000) Industrial Law Journal 176 CrossRefGoogle Scholar; and Skidmore, P. “EC Framework Directive on Equal Treatment in Employment: Towards a Comprehensive Community Anti-Discrimination Policy?” 30 (2001) Industrial Law Journal 126 CrossRefGoogle Scholar.
39 Communication from the Commission on certain Community measures designed to combat discrimination, COM (1999) 564 final.
40 Proposal for a Council Directive Establishing a General Framework for Equal Treatment in Employment and Occupation, COM (1999) 565 final, para. 3.1.1.
41 Ibid.
42 Above n 1, preamble para. 8.
43 Above n 1, preamble para. 25.
44 Above n 1, Art. 3(1).
45 The Commission has acknowledged that it was these reasons of political pragmatism, rather than any distinct principle, which led to the differences in scope between the two direc tives. See COM (99) 564, 8.
46 Skidmore, above n 36 at 127.
47 COM (99) 565, para. 3.1.1.
48 Above n 1, Art. 2.
49 Above n 1, Art. 2(2)(a).
50 Above n 1, Art. 2(2).
51 See further Meenan, H. “Age Discrimination: Law-Making Possibilities Explored” 4 (2000) International Journal of Discrimination and the Law 247, 257-258CrossRefGoogle Scholar.
52 Meenan, ibid at 255.
53 Above n 1, preamble para. 14.
54 [1978] ICR 27. As discussed in Buck, T. “Ageism and Legal Control”, in Hepple, B. and Szyszczak, E. (eds.) Discrimination: the limits of law (London, Mansell, 1992), 250-251Google Scholar.
55 The case was brought under the Sex Discrimination Act 1975 on the grounds that the age limit constituted indirect sex discrimination against women as they were more likely to have taken time away from the paid workforce in their twenties to care for children and were there fore less likely to be able to meet the demands of appointment by the age of 28. The case remains, however, relevant for the purposes of this discussion regarding justifications for age discrimination.
56 Skidmore also suggests that the justifications are likely to be “generously interpreted” by the Court in favour of member states: above n 36 at 130.
57 Above n 1, preamble para. 13.
58 Above n 1, preamble para. 14.
59 Above n 1, preamble para. 25.
60 For a discussion, see Barnard, C. EC Employment Law 2nd edn. (Oxford, Oxford University Press, 2000), 213–219 Google Scholar.
61 Case C-243/95 Hill [1998] ECR 1-3739.
62 Barnard, above n 60 at 214.
63 Waddington L. “Article 13 EC: Setting Priorities in the Proposal for a Horizontal Employment Directive”, above n 38 at 179.
64 Skidmore, above n 38 at 129.
65 For example, the recently adopted Irish legislation prohibiting age discrimination, provides exemptions for the police, defence forces and prison service. The US age discrimination legislation provides an exemption for firefighters. For a discussion of both the US and Irish provisions, see Meenan, above n 51.
66 Above n 1, Art. 18.
67 COM (99) 565 at 6.
68 As argued in Quinn, G. Non-Discrimination on the Grounds of Age and Disability, paper presented to the European Conference on Independent Living of Older Persons and Persons with Disabilities in Society, Helsinki, October 1999 Google Scholar.
69 Frolick, L. Aging and the Law: An interdisciplinary Reader (Temple University Press, 1999), 67 Google Scholar. See also Posner, R. Aging and Old Age (Chicago, Ill, Chicago University Press, 1995), 328 Google Scholar.
70 Frolick, Ibid.
71 Rutherglen, G. “From Race to Age: the Expanding Scope of Employment Discrimination Law” 24 (1995) Journal of Legal Studies 491 CrossRefGoogle Scholar. See also Posner, above n 69 at 328.
72 Rutherglen, ibid.
73 Although the US experience does show that in recent years, more women have availed themselves of the provisions of the Act, as more women have occupied professional positions. See Meenan, above n 51 at 263.
74 See further, Meenan, above n 51.
75 For example, while Richard Posner argues that the US ADEA should be repealed, he does accept that in its infancy, the Act did help eradicate some examples of irrational discrimination. Posner, above n 69 at 337.
76 See Naegele, G and Walker, A. “Conclusion”, in Naegele, G. and Walker, A. (eds.), The Politics of Old Age in Europe (Milton Keynes, Open University Press, 1999), 208 Google Scholar.
77 Art. 25, Charter of Fundamental Rights, OJ 2000 C 364/1.
78 In addition, there is an association of elder law attorneys and a journal, the Elder Law Review. See further Frolick, above n 69.
79 Above n 77.