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Ageism: Discrimination on the basis of age

By Anina D'cunha July 27, 2016

INTRODUCTION

Age discrimination or “Ageism” is the discrimination of a group of people because of their age. The main victims of ageism are the people belonging to the age group of fifty years or more.  Employees from this age group often do face age discrimination, but this concept has not received attention in India yet. This blog post attempts to detail the problem of age discrimination in India, which has come to the forefront off-late.

A landmark case in the U.S. was in EEOC v. Wyoming[1], where the Supreme Court upheld the constitutionality of the Age Discrimination in Employment Act as it applies to state and local governments. The Court rules that state and local governments cannot discriminate against employees and job applicants on the basis of their age. Recently, in the case of Schmitzer v. Bundesministerinfür Inneres (European Court of Justice decision in 11 November 2015), a pay scheme for Austrian civil servants which was amended because of age discrimination, was still age discriminatory.

 

ANALYSIS

Age discrimination is likely to affect employees, especially those belonging to the older age group, if the workforce faces an oversupply of young people. This has a considerable possibility in a country like India where the percentage of youth work force is nearly 60 percent of the total work force. Such discrimination results in many people losing their jobs due to their age alone. This could result from either from being pushed out of a profession with headhunters or recruiters preferring younger people over more senior counterparts, being barred from applying for a post or being replaced in one’s job by a younger candidate. Age-discrimination is common in India. For example, most institutions for higher studies prescribe a maximum age limit for applicants. Previously, a person could not take the Common Law Admission Test for studying LLB unless one was below 20 years of age, however this rule has been done away with.

There are no codified laws in India however, that tackle age discrimination, either at the local or national level[2]. Since there is no codified law on age discrimination in India, there is no designated statutory body which deals with matters pertaining to age discrimination. The awareness of the need to prevent age-based discrimination is very low as well.

The Constitution of India guarantees certain fundamental rights to the citizens of India, including protection to individuals from discrimination only on the grounds of religion, race, caste, sex or place of birth under Article 15 of the Constitution of India. However, age is not included. In practice, age discrimination is actually prohibited at various levels in matters of job recruitment or retirement [3].

Under the penal laws of India, no criminal sanctions are prescribed in relation to age discrimination and thus, only civil law actions can be instituted, and even then, only in cases where discrimination on the basis of age is highly unjustified. Civil remedies may include reinstatement with compensation where a person’s employment is terminated. An example of this would be seeking corrections of an award under Section 6(6) of the Industrial Disputes Act, 1947.  According to the nature of the claim made and the category of the employee, such cases can be filed in civil courts, service tribunals or labour courts[4]. Mostly claims made in India related to age discrimination are limited to judicial precedents (Air India v. Nergesh Meerza and Others (AIR 1981 SC 1829), State of Uttar Pradesh v. Dayanand Chakrawarty (AIR 2013 SC 3066). Judicial precedents are case laws that establish a principle which can be used in subsequent cases.

Under the retrenchment laws in India, termination of employment can only be done according to a specific Act which applies to the area where the dispute arose[5].

Retirement Age

There is also the problem of retirement age. In India,the retirement age for State government employees differ. For example, in the State of Kerala, the retirement age for government employees is 55 years while in the State of Punjab it is 60 years. The age of retirement for Central government employees is currently 60 years[6] Therefore, a government employee in Punjab would have the benefit of more years of service than one in Kerala. It is for this reason that one state may attract more applicants since their years of service would be more. This indicates inequality in terms of the number of years of service of governmental service and the migration of a number of government employment candidates from one state to another. It is clear that states with a higher retirement age provide an advantage for potential applicants.Indian laws do not prescribe any retirement age for private organisations. Thus, private organisations are free to decide the retirement age for their employees, which usually is 58 to 60 years.

In the case of Air India v. Nergesh Meerza and Others[7], the issue of different retirement age of male and female crew members of Air India came up for consideration. The Honourable Supreme Court of India struck down the provision which provided that the extension of service of an air hostess beyond 35, if found medically fit, would be at the discretion of the Managing Director. While striking the latter condition, the Court held that the real intention of the makers of this regulation had not been carried out because the Managing Director had been given uncontrolled, unguided and absolute discretion to extend or not to extend the period of retirement after an air hostess attained the age of 35 years. The Court held that the regulation gave wide powers to the Managing Director which could result in discrimination. However, although the Court considered the fact that Air India had fixed the retirement age of air hostesses different from the male crew members taking into account the nature of work, prevailing conditions of service, the need to safeguard health of females, and other relevant factors, the Court negated the grievance that service conditions providing lower age of retirement to air hostesses is unfavourable or discriminatory.

In the more recent case of State of Uttar Pradesh v. Dayanand Chakrawarty[8], the Court referred to the judgment of Prem Chand Somchand Shah v. Union of India[9], in which it was held that “if employees appointed from different sources, after their appointment were to be treated alike for the purpose of superannuation under Regulation 31, and subsequently solely on the basis of source of recruitment no discrimination can be made and differential treatment would not be permissible in the matter of condition of service, including age of superannuation, in absence of an intelligible differentia distinguishing them from each other”.

 

CONCLUSION

However, it is important to remember that India still has such a large number of unemployed people and that it cannot afford to allow its senior citizens to keep working until they voluntarily decide to call it a day. Furthermore, it is difficult to ascertain if one’s age is the cause of discrimination at work, as it could be a problem of incompetence or experience. When there are reasonable grounds for discrimination on the basis of age, such as nature of job, location of job, etc, discrimination would be justified. Yet, a situation where, if an employee’s termination is in accordance with law or contract, and they are duly paid their severance pay and termination benefits, they can challenge the termination but not only on the basis of age discrimination, if it seems unfair to people being discriminated against[10].

Thus, a law based on age discrimination in India could be the answer to the problem of ageism.  By making it unlawful for an employer to refuse to hire because of such individual’s age; or classify or group the employees in any way which would affect his status as an employee, because of such individual’s age; or reduce an individual’s wage simply on the grounds of age, an end to age discrimination could possibly be in sight.

  1.  Photo Courtesy:  https://www.google.co.in/search?q=ageism&biw=1368&bih=639&source=lnms&tbm=isch&sa=X&ei=lnyfVaqwOs_HuAS0_IPQBA&sqi=2&ved=0CAcQ_AUoAg#imgrc=Y_v6warheupIMM%3A
  2. http://www.slideshare.net/EricLi2/ageism-powerpoint-presentation

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[1] 460 U.S. 226 (1983)

[2] Age Discrimination, India, available at <http://www.agediscrimination.info/international/Pages/India.aspx>

[3] Business and Human Rights Resource Centre, available at <http://business-humanrights.org/en/age-discrimination-new-phenomenon-emerging-at-the-workplace-india>

[4] Age Discrimination, India, available at <http://www.agediscrimination.info/international/Pages/India.aspx>

[5] Age discrimination: New phenomenon emerging at the workplace, available at <http://economictimes.indiatimes.com/articleshow/9341329.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst>

[6] Available at<http://www.govtempdiary.com/category/retirement-age/>

[7] AIR 1981 SC 1829

[8] AIR 2013 SC 3066

[9] (1991) 2 SCC 48

[10] Age Discrimination, India, available at <http://www.agediscrimination.info/international/Pages/India.aspx>

 

TAG: EEOC v. Wyoming , Article 15 of the Constitution of India , Schmitzer v. Bundesministerinfür Inneres , State of Uttar Pradesh v. Dayanand Chakrawarty AIR 2013 SC 3066 , Air India v. Nergesh Meerza and Others AIR 1981 SC 1829 , State of Uttar Pradesh v. Dayanand Chakrawarty , Prem Chand Somchand Shah v. Union of India , ageism , retrenchment laws , DISCRIMINATION , Discrimination on the basis of age


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