Fighting Age-Related Discrimination in the European Union

Vol. 31 No. 2

By

Laurie A. McCann and Tom Osborne are senior attorneys with AARP Foundation Litigation.

Facing many of the same demographic challenges that confront the United States, particularly aging workforces followed by shrinking numbers of younger workers, the European Union (EU) has begun to combat age discrimination in employment. On November 27, 2000, the European Union Council of Ministers adopted the European Directive on Equal Treatment (Directive). This legislation requires all fifteen EU Member States to introduce legislation prohibiting discrimination in employment on the grounds of age, sexual orientation, religion and belief, and disability by December 2, 2003, although they are each permitted to seek a three-year extension to 2006 with regard to the age and disability grounds. The ten other countries that will become Member States by May 2004 also will have to comply with the Directive.

Because the U.S. Age Discrimination in Employment Act (ADEA) has been in effect since 1968, the EU turned to the United States to learn from our experience. Perhaps the most significant lesson the EU should take away is that a good law is not a cure-all for eliminating age discrimination from the workplace. Despite the fact that the ADEA has been in place for more than thirty-five years, age discrimination in employment remains a pervasive force. The most blatant forms of age discrimination, such as mandatory retirement and maximum hiring ages, have been eliminated. But more subtle forms of age discrimination remain entrenched in the workplace. In fact, charges of age discrimination filed with the Equal Employment Opportunity Commission (EEOC) have increased 41 percent since 1999.

What’s the explanation? The reason may lie partly in the fact that as a society, Americans simply do not view age discrimination in the same light as they do race and gender discrimination. Age discrimination is not considered as wrong or unacceptable and is viewed more as an economics issue than as a civil rights issue. In the United States, we “talk the talk” but don’t “walk the walk” when it comes to age discrimination.

With that in mind, how does the Directive stack up against U.S. law? With the exception that the Directive explicitly prohibits both direct and indirect age discrimination (the equivalent of our disparate treatment and disparate impact), the Directive is not nearly as forceful as the ADEA in condemning age discrimination. Most significantly, the Directive permits Member States to continue to enforce mandatory retirement, whereas the United States abolished it in 1986 (except for a few narrow exceptions). In addition, the Directive contains the following provision: “Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if . . . they are objectively and reasonably justified by a legitimate aim . . . and if the means of achieving that aim are appropriate and necessary.” This provision can be interpreted to provide the Member States with almost unfettered discretion to carve out large exceptions to the prohibition. Finally, the ADEA limits its application to individuals age forty and older, but the Directive specifies no age limits and thus protects the young as well as the old.

Although the process of implementing the Directive is now taking place in all the Member States, it has been uneven and inconsistent. The majority of Member States have not fully complied with the December 2, 2003, deadline; only the United Kingdom, Belgium, and Sweden notified the European Commission that they would take advantage of the three-year extension. Austria, France, Italy, and Ireland reported full implementation, although questions remain regarding the effectiveness of implementation by the first three. Denmark, Netherlands, Greece, Finland, Luxembourg, Spain, and Portugal are in various stages of implementation, although here too questions remain regarding the effectiveness of the implementation. Of all the members, only Ireland appears to have the most comprehensive approach to age discrimination—as well as the political will to fully implement the Directive’s age provisions. Ireland’s success is due in large part to the fact that it already had enacted an effective antidiscrimination law—the Employment Equality Act of 1998, addressing discrimination based on age and eight other grounds—two years before the Directive was adopted.

The loopholes in the Directive, combined with the Members States’ delays in taking steps to enact the legislation, suggest that the EU is a long way from either “talking the talk” or “walking the walk” when it comes to eliminating age discrimination. If the United States and Europe hope to address the demographic challenges facing their labor forces, both must take more effective action to allow older workers who want to continue to work to do so.

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