Age discrimination in the workplace

The law has for its avowed purposes the following: a) promotion of employment on the basis of ability, knowledge, skills, and qualification; b) prohibition against arbitrary age limitations in employment; and c) promotion of the right of all employees and workers, regardless of age, to be treated equally in terms of compensation, benefits, promotion, training and other employment opportunities. The law covers all employers, labor contractors/subcontractors, and labor organisations.

The law enumerates several prohibited acts for an employer, labor contractor/subcontractor, labor organisation, and a publisher.
Section 5 (a) of the law provides that it shall be unlawful for an employer to do the following:
a) Print or publish, or cause to be printed or published, in any form of media, any notice of advertisement relating to employment suggesting preferences, limitations, specifications, and discrimination based on age;
In this connection, a publisher is prohibited from printing or publishing any notice of advertisement relating to employment suggesting preferences, limitations, specifications, and discrimination based on age.
b) Require the declaration of age or birth date during the application process;
c) Decline any employment application because of the individual’s age;
d) Discriminate against an individual in terms of compensation, terms and conditions or privileges of employment on account of age;
e) Deny promotion or opportunity for training because of age;
f) Forcibly lay off an employee or worker because of old age; and
g) Impose early retirement on the basis of age.

Please note though there are provisions in the Labor Code and in Republic Act No. 7658 (a.k.a. the ‘Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act’) that prescribe the conditions under which minors can be employed. Furthermore, this new law should also be read in conjunction with the Senior Citizens Act (Republic Act No. 7432, as amended).
On the other hand, a labor contractor/subcontractor cannot refuse to refer for employment an individual because of his age; or otherwise discriminate against any individual because of his age. For labor organisation, it cannot deny membership to any individual because of his age; exclude from its membership any individual because of his age; and cause or attempt to cause an employer to discriminate against an individual in violation of this law.

The law, however, admits of several exceptions. For instance, an employer is allowed to prescribe age as a requirement for employment if “age is a bona fide occupational qualification (‘BFOQ’) or where the differentiation is based on reasonable factors other than age.” Philippine jurisprudence mandates that, to justify a BFOQ, the employer must prove two factors: 1) that the employment qualification (in this case, age) is reasonably related to the essential operation of the job involved; and 2) that there is a factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job (Star Paper Corporation, et. al. vs. Simbol, et. al., G.R. No. 164774, 12 April 2006). The other exceptions provided under the law are: a) the intent is to observe the terms of a bona fide seniority system; b) the intent is to observe the terms of a bona fide employee retirement or a voluntary early retirement plan consistent with the purpose of RA 10911; or c) the action is duly certified by the Secretary of Labor and Employment.

For violating the law, an individual or entity shall be meted the penalty of fine of not less than Fifty Thousand Pesos (Php 50,000) but not more than Five Hundred Thousand Pesos (Php 500,000) or imprisonment of not less than three (3) months but not more than two (2) years, or both.

While the enactment of this law may have come too late in the day, it is still a good step towards the attainment of a discrimination-free workplace in the Philippines.

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