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Published online by Cambridge University Press: 27 June 2019
The UK courts and the CJEU have often treated age discrimination as a less serious form of discrimination. This is reflected in the courts’ reluctance to offer rigorous scrutiny when evaluating whether age-differential treatment is objectively justified under anti-discrimination law. Further, a number of judges have asserted that age discrimination must be understood as different to other forms of discrimination, such as race or sex discrimination. This paper argues that age discrimination is not fundamentally different or prima facie less serious than other forms of discrimination. Age discrimination can undermine the same principles that paradigm forms of discrimination also undermine, including: creating inequality of opportunity by disadvantaging people because of a trait that is outside a person's control; undermining social equality by creating a hierarchy of social status between different groups; violating autonomy by diminishing people's capacity to have control over their lives; and communicating disrespect by conveying that particular groups have a diminished moral or social worth. It follows, contrary to the approach of much of the case law, that the courts should offer rigorous scrutiny of age-differential treatment to identify these harms and only permit age distinctions that are strictly tailored to enhance equality or other important values.
1 In 1999, the European Commission argued that legislation prohibiting age discrimination was necessary as part of a strategy to address the consequences of an ageing population and to enable and motivate older people to remain in work. See Commission Towards a Europe for all Ages – Promoting Prosperity and Intergenerational Solidarity Com No 221, 1999.
2 Equality Act 2010, ss 13, 19.
3 This reputation is also evident in the academic literature. Posner, Richard, in Aging and Old Age (Chicago: University of Chicago Press, 1995) p 204Google Scholar, argued that age discrimination is not a real problem and that the concept only exists in the minds of ‘some radical egalitarians’ who ‘see discrimination everywhere’. See also Issacharoff, S and Harris, E ‘Is age discrimination really age discrimination: the ADEA's unnatural solution’ (1997) 72 New York University Law Review 780Google Scholar for the argument that age discrimination should not be prohibited because it does not reach the level of seriousness of race or sex discrimination.
4 This lack of scrutiny is revealed in Palacios de la Villa v Cortefiel Servicios SA (411/05) [2007] ECR I-8531; Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe (341/08) ECR I-00047; Rosenbladt v Oellerking Gebäudereinigungsgesellschaft mbH (45/09) ECR I-09391; Wolf v Stadt Frankfurt am Main (229/08) ECR I-00001; Seldon v Clarkson Wright & Jakes [2012] UKSC 16, [2012] 3 All ER 130; and R v Secretary of State for Work and Pensions, ex p Carson and Reynolds [2005] UKHL 37, [2006] 1 AC 173.
5 See Palacios de la Villa v Cortefiel Servicios SA (411/05) [2007] ECR I-8531, Opinion of AG Mazák, para 62.
6 Seldon v Clarkson Wright & Jakes, above n 4, para 4.
7 R v Secretary of State for Work and Pensions, ex p Carson and Reynolds, above n 4, para 60.
8 Above n 4.
9 [2013] EWCA Civ 1195, [2014] 1 All ER 250.
10 Above n 4.
11 For a detailed overview of the CJEU jurisprudence on age discrimination, see O'Cinneide, C ‘Age discrimination and the European Court of Justice: EU equality law comes of age’ (2009) 2 Revue des affaires europeennes 253Google Scholar. There are a limited number of European Court of Human Rights cases on age discrimination, but the Strasbourg court has held that age-differential treatment engages Art 14 of the ECHR. In Schwizgebel v Switzerland App no 25762/07 (ECtHR, 10 June 2010), the Strasbourg Court held that a policy that denied a 47 year old women the option of adoption because of her age was age-differential treatment that engaged Article 14. Also, the House of Lords in Carson and Reynolds affirmed that Art 14 of the ECHR prohibits age-differential treatment in the UK unless the treatment is objectively justified.
12 See Equality Act 2010, ss 13(2), 19; Framework Directive, Art 6; and the ECHR, Art 14.
13 See the Schwizgebel case for authority that age-differential treatment engages Art 14.
14 In Seldon v Clarkson, Wright and Jakes, above n 4, the UK Supreme Court held that this is the appropriate test for proportionality assessments in age discrimination cases.
15 (411/05) [2007] ECR I-8531.
16 Ibid, Opinion of AG Mazák, para 62.
17 Ibid, para 64.
18 (388/07) ECR I-01569, Opinion of Mazák AG, para 74.
19 Ibid.
20 Above n 4.
21 Ibid, para 4.
22 Ibid.
23 Above n 4.
24 Ibid, para 60. This is similar reasoning to the US Supreme Court in Massachusetts Board of Retirement v Murgia (1976) 438 US 285, which held that older people ‘have not experienced a “history of purposeful unequal treatment” or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities’ (at 313).
25 Posner, R ‘Employment discrimination: age discrimination and sexual harassment’ (1999) 19(4) International Review of Law and Economics 421CrossRefGoogle Scholar.
26 Issacharoff and Harris, above n 3.
27 Gosseries, A ‘What makes age discrimination special? A philosophical look at the ECJ case law’ (2014) 43(1) Netherlands Journal of Legal Philosophy 59CrossRefGoogle Scholar.
28 Segall, S ‘What's so bad about discrimination?’ (2012) 24 Utilitas 82CrossRefGoogle Scholar at 82.
29 This is the luck egalitarian version of the equality of opportunity principle, which holds that it is wrong for a person to be worse off to the extent that they are not directly responsible for their condition of being worse off. The following have defended this principle: Segall, S Equality and Opportunity (Oxford: Oxford University Press, 2013)CrossRefGoogle Scholar; Mason, A Levelling the Playing Field: The Idea of Equality of Opportunity and Its Place in Egalitarian Thought (Oxford: Oxford University Press, 2006)CrossRefGoogle Scholar.
30 Cupit, G in ‘Justice, age, and veneration’ (1998) 108 Ethics 702CrossRefGoogle Scholar noted that ‘the alleged injustice of age discrimination presents a puzzle’ because the ‘[s]tandard argument against discrimination – the argument from equalizing benefits – seems not to apply’.
31 This is the complete-life version of equality of opportunity. Nagel, N, in Equality and Priority (Oxford University Press, 1991) p 69Google Scholar, for example, argued that ‘the subject of an egalitarian principle is not the distribution of particular rewards to individuals at some time, but the prospective quality of their lives as a whole, from birth to death’.
32 See Equality Act 2010, ss 158 and 159.
33 For an account of the social equality explanation of the wrong of discrimination see Bagenstos, S ‘Employment law and social equality’ (2013) 112 Michigan Law Review 225Google Scholar.
34 S Fredman ‘What do we mean by age equality?’ (2001) Paper to the IPPR Seminar on Age as an Equality, Issue 30.
35 See Sargeant, M ‘Young workers and age discrimination’ (2010) 26 The International Journal of Comparative Labour Law and Industrial Relations 467Google Scholar.
36 Gardner, J ‘On the ground of her sex(uality)’ (1998) 18 Oxford Journal of Legal Studies 167CrossRefGoogle Scholar at 170.
37 Ibid, at 170.
38 Ibid, at 171.
39 Moreau, S ‘What is discrimination?’ (2010) 38 Philosophy and Public Affairs 143CrossRefGoogle Scholar.
40 Ibid, at 149.
41 in, M Cavanagh Against Equality of Opportunity (Oxford: Clarendon Press, 2002) p 166Google Scholar has identified wrongful discrimination as treating people ‘with unwarranted contempt’.
42 Rawls, J A Theory of Justice (Cambridge: Harvard University Press, 2009) p 440Google Scholar.
43 Hellman, D When is Discrimination Wrong? (Cambridge: Harvard University Press, 2008)Google Scholar.
44 Ibid, p 26.
45 For an example of this stereotyping, see Willetts, D The Pinch: How the Baby Boomers Took Their Children's Future-and Why They Should Give it Back (London: Atlantic Books, 2011)Google Scholar.
46 [2016] UKET/3301905/2015.
47 [2012] UKET/2601000/12.
48 [2011] UKEAT/0384/11/DM.
49 Equality Act 2010, s 195 permits sex-segregation in sports events provided ‘strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity’.
50 Equality Act 2010, s 27 provides for provision of single sex provision of services if the service would be provided more effectively this way or if there if only persons from a particular sex that need that service.
51 Ibid.
52 [2014] UKEAT/0434/13/RN.
53 Blackham, A ‘Interrogating the “dignity” argument for mandatory retirement: an undignified development? (2018) Industrial Law Journal 21Google Scholar, available at https://doi.org/10.1093/indlaw/dwy013.
54 See McEvoy, G and Cascio, W ‘Cumulative evidence of the relationship between employee age and job performance’ (1989) 74(1) Journal of Applied Psychology 11CrossRefGoogle Scholar.
55 See ONS Labour Market Statistical Releases.
56 Fredman, S ‘The age of equality’ in Fredman, S and Spencer, S (eds) Age as an Equality Issue: Legal and Policy Perspectives (Oxford: Hart Publishing, 2003)Google Scholar.
57 [2011] ET/1808694/07, 101539/08, 115515/10.
58 [2013] UKEAT 0094/12/0402.
59 [2013] EWCA Civ 1195, [2014] 1 All ER 250.
60 Blackham, A ‘Falling on their feet: young workers, employment and age discrimination’ (2015) 44(2) Industrial Law Journal 246CrossRefGoogle Scholar at 254.
61 [2011] ET/1808694/07, 101539/08, 115515/10 [27].
62 Blackham, above n 60, at 257.
63 [2005] UKHL 37, [2006] 1 AC 173.
64 Ibid, paras 37–40, 45.
65 Ibid.
66 Ibid, para 45.
67 See Equality Act 2010, s 159.
68 Many reject the idea that there should be a general justification test for direct discrimination. It is argued that direct discrimination is more of an affront to dignity than indirect discrimination and therefore the law should make it more difficult to justify direct discrimination than indirect discrimination. Providing a general justification test for direct discrimination, so this argument goes, would subject direct discrimination to the same legal procedure as indirect discrimination, which currently has a general justification test. See Gill, T and Monaghan, K ‘Justification in direct sex discrimination law: taboo upheld’ (2003) 32(2) Industrial Law Journal 115CrossRefGoogle Scholar.