Published — August 24, 2018
The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
Read Also: Management Prerogative and Rights of Employers
Hiring and selection of employees have, since time immemorial, been recognized as a prerogative for employers. This notwithstanding, fixing of qualifications are quite often made to depend on some arbitrary standards that employers want their employees to possess. One of such standards that usually factor into employers’ decisions on whether to hire is the age of the job applicant.
Since the State has always been geared towards promotion of equal opportunities in employment for everyone, R.A. No. 10911, or the Anti-Age Discrimination in Employment Act was passed seeking to promote employment of individuals on the basis of their abilities, knowledge, skills and qualifications rather than their age. Through the law, arbitrary age limitations is prohibited, as it seeks to uphold the rights of all employees, and for such employees to be treated equally in terms of compensation, benefits, promotion, training, and other employment opportunities regardless of their age [See: Sec. 1, D.O. No. 170-17].
Prohibited acts of discrimination based on age
Though it may be difficult to prove unwritten preferences, the law, at the very least, makes it unlawful for any employer, and other persons covered by the law such as labor contractors or subcontractors, and labor organizations, to do the following acts:
- Print or publish in any form or medium (including the internet) any notice of advertisement relating to employment suggesting preferences, limitations, job specifications based on age;
- Require job applicants to declare their age or date of birth during the hiring and selection process;
- Decline any employment application because of the individual’s age;
- Discriminate against an individual in terms of compensation, terms and conditions or privileges of employment on account of such individual’s age;
- Deny any employee’s promotion or opportunity for training because of age;
- Forcibly lay off an employee or worker because of old age; or
- Impose early retirement on the basis of such employee’s age [See: Sec. 4(a)].
Job contractors and subcontractors, on the other hand, are prohibited from refusing referral for employment, or otherwise discriminate against any individual simply because of age. Also, it shall be unlawful for labor organizations to deny membership or exclude from membership any individual by reason of age [See: Sec. 4(b) & (c)].
When it is not considered discrimination
Though it is unlawful for employers to set age limitations in employment, it may be allowed under justifiable circumstances. That said, there are recognized exceptions where age requirements may be prescribed without the employer being considered to have violated the prohibitions set by law.
Therefore, it would still be lawful for the employer to fix age requirements when it is a bona fide occupational qualification reasonably necessary in the normal operation of a particular business [See: Sec. 5(a)]. In such case, however, the employer has to show that the age requirement is really necessary to perform the job, and that anyone who would not meet such age requirement will not be able to do the job properly.
Thus, if a hospital seeks to employ surgeons, especially those who would operate on sensitive organs like the nerves and the brain, employers can seek to justify limiting the age of applicants to not older than, say, 60 years old. It is so because as a person gets older, his manual dexterity necessary in performing delicate surgeries could have already started deteriorating, and his eyesight may not anymore be very reliable especially in long hours of operation, even with the aid of eyeglasses.
But if a vacancy pertains to being a receptionist, 60 years of age may not be too old to perform the tasks that would be required of him. In such case, age cannot be considered a bona fide occupational qualification.
Aside from bona fide occupational qualification, the law allows the employer to fix an age requirement in other instances, such as:
- When the intent is to observe the terms of bona fide seniority system;
- When the intent is to observe the terms of bona fide employee retirement, or a voluntary early retirement plan;
- The action is allowed by the Secretary of Labor [See: Sec. 5(b), (c) & (d)].
Penalties for violation
Any violation of R.A. No. 10911 shall be punished with a fine ranging from P50,000.00 to P500,000.00, or imprisonment from 3 months to 2 years, or both, at the discretion of the court. If the offense is committed by a corporation, trust, firm, partnership, association or other entity, the penalty shall be imposed upon the guilty officer or officers [See: Sec. 8].
As mentioned, proving unwritten age qualifications may prove to be a daunting task not only for the government but also for the applicants themselves, as companies may continue their practices in hiring and selecting new employees based on their own prerogatives and preferences. This notwithstanding, every employer still needs to at least be aware of what their obligations are under the Anti-Age Discrimination in Employment Act and its Implementing Rules, as it is their legal and moral responsibility to uphold the spirit and purpose of the law, in order to achieve the State’s policy of giving full and equal employment opportunities.
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding hiring and selection of employees, and other management prerogatives, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
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