— A Comparative Analysis Based on Age Discrimination in the Employment Act

 

ZHOU Lulu*

 

Abstract: In the context of the deepening of the population aging, many countries have begun to rectify age discrimination in labor and employment to ensure that the elderly enjoy equal and adequate right to work. In accordance with relevant laws and regulations, the legal norms of age discrimination in employment are highly similar in different countries. Yet, there are differences in exemption clauses and legal relief. So far, three major regulatory modes have taken shape respectively in the United States, Europe and Japan. China still lags behind in legislation against age discrimination in employment, so extraterritorial governance experiences should be taken for reference to promote relevant legislation based on intergenerational solidarity and cooperation in a timely manner, so as to provide a legal guarantee for the elderly on the right to work and the handling of population aging. China should also use human rights discourse to summarize and express its own solutions and take an active part in the process of signing the international instruments on human rights specialized for the elderly.

 

Keywords: age discrimination in employment · the rights of the elderly · international human rights law 

 

With populations aging around the world, age discrimination in various realms such as employment, education, and consumption poses a severe threat to the elderly enjoying their rights, which has been a hot topic regarding the rights of the elderly under the framework of the United Nations. Many countries have begun to take legal measures to address age discrimination in labor and employment, forming legislation and governance experiences that can be used as references. In addition, the ban on age discrimination in employment involves not only the protection of the right to equality, the right to work and other rights stipulated in international human rights conventions, but also the smooth implementation of China’s national development strategies in response to population aging. Therefore, China should, based on careful analysis and studies of its actual conditions and development goals, take timely and appropriate measures to advance institutional reform in this regard. In consideration of this, this paper introduces and reviews major foreign legal and regulatory modes regarding age discrimination in employment and analyzes the differences in the legislation ideas behind different systems, so as to provide useful references for China to solve the problem of age discrimination in employment and better protect the rights of the elderly. 

 

 

 

Age discrimination in labor and employment severely threatens the rights of the elderly, which has drawn wide attention in the international community. In a thematic report she submitted to the Human Right Council in 2021, Claudia Mahler, an independent expert on the enjoyment of all human rights by older persons, stated, “Older persons face ageism and age discrimination in access to work. Ageist barriers to employment include mandatory retirement ages, age limits in recruitment, negative stereotypes about the ability of older persons to work, and societal norms, which all hinder the right of older persons to work... Ageism and age discrimination are human rights violations and purveyors of other human rights violations.”¹ Age discrimination in employment not only harms the dignity of the elderly and undermines their ability to earn incomes and make a living through work, but also directly violates the stipulations of core human rights conventions on equality, non-discrimination, and the right to work, among others. 

 

Article 6 of the International Covenant on Economic, Social and Cultural Rights states that the States Parties to the Covenant “recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts.” Article 7 of the Covenant further interprets it as “the right of everyone to the enjoyment of just and favorable conditions of work.” Despite the fact that the Covenant doesn’t mention older persons and agism, it is obvious that the elderly should fully enjoy all rights stipulated in the Covenant. This point has been acknowledged by the general comments released by the UN Committee on Economic, Social and Cultural Rights (CESCR), of which the general comment No.6 clarifies that “the prohibition of discrimination on the grounds of ‘other status’ could be interpreted as applying to age.”²

 

However, just as the aforesaid independent expert observed, compared with gender discrimination, racial discrimination, and disability-based discrimination, the definition of age discrimination in the existing international human rights norms is more obscure. Even if “the right to be free from age discrimination” can be justified through interpreting relevant clauses of related conventions, this right hasn’t been put under effective protection of the UN human rights system in reality. From the perspective of the established norms, only two human rights conventions clearly stipulate the prohibition of age discrimination. Article 8 of the Convention on the Rights of Persons with Disabilities clarifies that persons with disabilities shall be protected from discrimination based on sex and age from the perspective of intersectional discrimination, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families clarifies that age should be used as a reason for discrimination.³ Other human rights instruments, including the International Covenant on Economic, Social and Cultural Rights, all include generalized stipulations on age discrimination in the form of “other status.”

 

In the general comments published by the CESCR on human rights for older persons it was proposed to eliminate age discrimination, but its attitude toward age discrimination in employment seems to be more blurred and ambiguous. For instance, “General Comment No. 6: The economic, social and cultural rights of older persons,” first of all, recognizes that older persons shall enjoy the rights (including the right to work) protected by Article 6 to Article 8 of the Covenant. However, its subsequent expressions are based on the recognition of the “legitimacy of mandatory requirements on age”, which mainly include: ensuring older workers find and keep jobs on an equal footing and enjoy safe working conditions until their retirement and ensuring older workers reaching retirement age, on the basis of participation, enjoy “certain pensions,” “trade union rights” and “the opportunities and conditions for continuing an occupational activity” and “facilities for adult education and cultural activities.” Moreover, the general comment clarifies the few areas in which discrimination continues to be tolerated, such as in relation to “mandatory retirement ages” or “access to tertiary education.”⁴ Such an attitude is reiterated in General comment No.18 on the right to work and General comment No.20 on non-discrimination.⁵

 

In recent years, international guidelines on age discrimination in employment seem to undergone changes. In 2021, the 11th session of the Open-Ended Working Group on Aging was convened to discuss issues related to age discrimination and older persons’ right to work. The report of the session concluded that despite the existing framework of international human rights law clarifying that older persons enjoy rights related to work including the right to be free from discrimination in employment, “many issues that were specific and relevant to older persons in labor markets had been insufficiently addressed” and those challenges and barriers deprive many older persons of the basic right to work.⁶ At the session, in which representatives of 99 UN member states, 12 national human rights bodies, and 37 non-government organizations, all delegations unanimously agree to take measures to prevent discrimination on the grounds of age in labor and employment. 

 

Generally speaking, age discrimination in employment is a major barrier hindering the full enjoyment of human rights by older persons. Discriminatory treatment on the grounds of age directly infringes on the right of older persons to work, and sabotages basic human rights values such as equality and respect for human dignity. Although the international community has reached a consensus on taking necessary measures to eliminate age discrimination, different countries still have divided opinions on how to use laws and regulations to address age discrimination in employment due to their differences in employment policies, aging concepts, and demographic conditions. In particular, there are huge divergences in the understanding, attitude and action regarding the retirement system. From a theoretical perspective, such differences derive from the inherent complexity of age — age itself is the oldest criterion for the division of labor for mankind. Many discriminations on the grounds of age are important tools to balance the demand for employment and social benefits between different groups of people and facilitate the implementation of social policies. How to distinguish acceptable discrimination from unacceptable discrimination — namely, age discrimination — is key to relevant theoretical studies and institutional practice. 

 

 

The concept of age discrimination, or ageism, was first coined by Robert N. Butler to refer to the stereotype about the elderly in US society at that time and the unreasonable discrimination based on such a stereotype.⁷ As relevant research went deeper, the connotations of age discrimination were enriched and developed. For example, Palmore pointed out that ageism may refer to “any prejudice and discrimination against any age group,” that is, stereotyping of and discrimination against either “elderly people” or “young people” can be considered as age discrimination.⁸ Bill By the way gave an even more radical definition for ageism from the angle of interaction between individuals and the social environment. He holds that age is merely a measurement of the time that an individual has lived, so it cannot independently represent any certain biological or psychological traits. Therefore, ageism not only includes prejudice and discrimination against a certain age group, and even the division of people by age constitutes discrimination.⁹ In 2021, Claudia Mahler gave a comprehensive interpretation of the definition and manifestations of ageism: age discrimination (ageism) refers to “stereotypes, prejudice and/or discriminatory actions or practices against older persons that are based on their chronological age or on a perception that the person is ‘old’ (an unreasonable division of people by age).”¹⁰ According to this definition, the factors behind age discrimination include objective reality (chronological age), subjective perception (that the person is “old”), and identity labeling (as elderly people), and ageism is manifested as attitudes, perceptions and actions based on the aforesaid factors. 

 

From the perspective of anti-discrimination laws, age discrimination in employment has a highly similar theoretical structure to discrimination based on other reasons. For instance, age discrimination can be further categorized into direct discrimination, indirect discrimination, harassment, retaliation, etc. Nevertheless, all involve prejudice and unjustified discrimination on the grounds of identity.¹¹ However, age discrimination in employment has some aspects that require particular consideration, which is mainly reflected in the complexity of using age as a criterion to divide different groups of people. On the one hand, aging is a dynamic process that everyone must face in his or her life, and it is an undeniable fact that a person’s biological performance, knowledge structure, and emotional experience will change with the increase of age. Although it is thoughtless to conclude that a person’s capabilities will gradually decline with the increase of age, it is irrefutable that workers’ demand for working conditions will change as they get older. 

 

If indiscriminately giving equal treatment to all age groups, regardless of the changes in their demands alongside aging, it will only result in inequality in terms of consequences. On the other hand, various changes caused by the increase of age, to a large extent, are neither linear nor having any certain time nodes that lead to fundamental changes in the short term.¹² That means age discrimination may occur in any phase of an individual’s life and career and have absolutely different manifestations in different phases. The Global Report on Ageism released by the World Health Organization (WHO) in 2021 cited the results of several surveys to point out that the majority who fall victim to the trend of preferring “younger” employees under the same conditions in terms of recruitment, training, promotion, etc. are laborers aged between 40 and 55.¹³ However, in most countries, individuals aged between 40 and 50 are not “elderly people” in the real sense.¹⁴ For “older workers”, age discrimination in employment and occupation may be manifested as dismissal, refusal of recruitment, loss of training or promotion opportunities, etc. under the excuse of age. Meanwhile, from the perspective of key components, such as rules for remuneration and promotion based on age or seniority, rather than actual capacities and fair competition, may also cause discrimination against “younger workers”. 

 

Therefore, analysis of the legal system regarding age discrimination in employment, first of all, should focus on the following two aspects: First, whether discrimination on the grounds of age is conducive to facilitating the realization of certain justifiable intentions? For instance, providing old age allowance and nursing allowance¹⁵ for members of society who reach a certain age is considered a vital policy tool to offset the increase in expenditure due to aging and support older persons in enjoying appropriate living standards or higher health standards. Supporters of the mandatory retirement system often defend their opinions by arguing that such a system helps realize the “legal goals of employment policies, labor market and occupational training.”¹⁶ From the practical perspective, various countries’ legal practices to combat age discrimination not only seek to eliminate discrimination and promote equality, but also shoulder the missions to develop old-age human capital, deepen intergenerational solidarity, and tackle population aging. Usually, such goals and missions can affect the definition and judgment of discrimination in the legal system. The key to the analysis of anti-discrimination systems lies in extracting the goals and judgment standards from the definition, manifestations and relevant exemption clauses of age discrimination, so as to deepen the understanding of related systems and practices. 

 

On the other hand, even if discrimination on the grounds of age is conducive to the realization of some justifiable objectives, we still must pay attention to its impact on different age groups and relevant actors, so as to achieve a fair distribution of practical costs caused by such discrimination. 

 

For instance, older persons often face discrimination because of the viewpoints that their knowledge, skills and experiences cannot conform to the current work and market competition. To achieve equal and full employment of older persons in a real sense, relevant skill trainings and employment services are indispensable. The costs arising from this process may be undertaken by enterprises, governments, and the older persons themselves (or their families). If the legal system turns a blind eye to employers’ behavior to dismiss aged employees, the reality will force older persons and their families to bear all costs they need to get accustomed to new working environments, which is undoubtedly a kind of social unfairness. Therefore, legal systems against age discrimination in employment must pay attention to the fair distribution of practical costs and ensure such discrimination won’t infringe on human dignity and basic rights. At the same time, as we examine legal systems against age discrimination in employment, we should clarify which kinds of relief they provide. Such relief should include not only juridical and administrative means to protect older persons from age discrimination and help them seek compensation for discrimination that has already occurred, but also a mechanism to enable older persons to equally participate in the fair distribution of costs for employment programs.

 

 

Many countries, especially developed countries experiencing severe population aging, have used legal tools to tackle ageism in labor and employment, forming some legislation modes and governance experiences that can be used as references. Due to differences in intentions and national conditions, these countries have adopted varying regulations and strategies to tackle age discrimination in employment and established their distinctive patterns in this regard. Based on the results of the above theoretical discussions, this paper focuses on introducing and analyzing the existing anti-ageism systems of the United States, Europe and Japan from the perspective of two major issues concerning age discrimination in employment: “definition and exemption” and “relief and cost distribution.”

 

 

Influenced by the Civil Rights Movement, the United States introduced legislation on discrimination in employment decades ago. On the basis of the Civil Rights Act of 1964, it promulgated the Age Discrimination in Employment Act (ADEA), which forbids discrimination against workers aged between 40 to 65 unless there are justified reasons. In terms of text, the definition of age discrimination in the Act is similar to that of racial discrimination and gender discrimination stipulated in the Civil Rights Act of 1964. Age discrimination in employment is comprised of two major factors: “age” used as a reason for discrimination and “unreasonable discrimination.” Furthermore, discriminated treatments in terms of employment, dismissal, salary, position distribution, vocational training, benefits, and any other working conditions may constitute discrimination. Alike, “harassment” and “retaliatory practices” on the grounds of age are also prohibited by law. 

 

In terms of waivers, the Act exempts discrimination practices based on “practical occupational requirements” from punishment. That is to say, employers can set age limits for the recruitment and promotions of certain professions such as firefighters and pilots. In addition, the fact that the Act sets 65 years old as the maximal age to be protected actually acquiesces in the legitimacy of mandatory retirement. This system setting derives from the economics theory of the “employee life cycle.” 

 

According to the economic model based on the theory of “employee life cycle,” the marginal output of an individual in work follows a reversed U-shaped curve in his life cycle, but his salary usually sees a linear growth. Therefore, the bonus and training opportunities that one can enjoy in the early stage of his career and the relatively high salary and retirement remuneration that he can enjoy in the late stage of his career can be construed as a kind of labor consideration throughout his life cycle as an employee, which is the “substitute remuneration” for retreating from work.¹⁷ Therefore, retirement remuneration and job opportunity are both interconnected and mutual exclusive. In the United States, the time node marking a transition from employment to retirement is usually set at the age of 65. The 1986 amendment to the Act, however, radically changed the logic of this system. It abolished the age limit for the targets under protection, which in reality annuls the common practice of mandatory retirement. Any discriminated treatment of workers above the age of 40 may constitute age discrimination. In 1990, when amending the ADEA, the US Congress added the Older Workers Benefit Protection Act (OWBPA). The OWBPA reiterates the prohibition on “mandatory retirement,” further clarifies that the employer shall ensure employees above the age of 40 enjoy benefits of equal cost with younger employees, and stresses that the prohibition on age discrimination is applicable to not only employee recruitment and dismissal, but also the discriminated treatments in terms of salary, welfare, promotions, and other benefits.

 

In this context, the United States has completely shifted from “mandatory retirement” to “voluntary retirement.” In the event of being knowing and voluntary, an employee can negotiate with his or her employer on age-related work arrangements, and the two sides can reach an agreement on adjusting specific jobs, terminating the employment relationship or enjoying certain benefits when the employee reaches a certain age. Specifically speaking, the employer can adopt dismissal incentive and early retirement plans, as well as great retirement benefits, to “lure” employees to waive rights related to the prohibition on age discrimination and voluntarily withdraw from work. Of course, if the formulation and implementation of relevant retirement plans involve stereotyping or discrimination, such as higher or lower remunerations for employees based on their ages, genders and races or depriving employees of certain age groups of the opportunity to participate, the employer may face the risks of indemnity and lawsuits. In addition, the ADEA introduced a special waiver clause exempting violators from legal responsibility, whereas the discrimination is based on “reasonable factors other than age.” That means an employer can be exempted from responsibility for age discrimination if it can verify that such discrimination is based on reasonable measurement standards that are equally applicable to all employees and such standards have nothing to do with age. For example, if an employer dismisses an older employee or offers him or her a lower salary and less-than-standard benefits according to the results of performance evaluation and skill tests, this behavior won’t be regarded as age discrimination. In his book Aging and Old Age, published in 1995, Richard Posner pointed out that employers at that time often “excluded” older workers they didn’t like under the excuse of unqualified capacities and attitudes in work or with inducible early retirement agreements, thus evading the prohibition on age discrimination. In this way, they “controlled the age structure of employees by offering early retirement benefits, without violating relevant laws or paying other high costs”.¹⁸

 

In the United States if an employee believes he or she faces discriminated treatment based on age, he or she may lodge a complaint to the Equal Employment Opportunity Commission or submit a case to court, so as to seek relief.¹⁹ The OWBPA of 1990 improves rules concerning the right to claim indemnity and sue for age discrimination, supporting older persons to defend their own rights and interests by juridical means through distributing the burden of persuasion and prolonging the statute of limitations.²⁰ The Civil Rights Act of 1991 abolished the stipulations on the statute of limitations in the ADEA of 1967, strengthening the relief for older persons subject to age discrimination. However, many US scholars declare that the ADEA seems to only have played a limited role in protecting older people’s right to work. For instance, case studies show that older employees often “voluntarily” accept the early retirement arrangements provided by their employers due to the high costs of defending their rights with lawsuits, and even if older employees claim such strategies constitute age discrimination, their claims are unlikely to get support from the court.²¹ Even so, the ADEA still accelerated the reform of age-related rules for labor and employment in the United States. The looming legal risks have forced employers to change their attitudes and age-structure management plans, so as to hire more middle-aged and older workers. Today, even if employers can still lure employees to accept “early retirement arrangements” with attractive retirement remunerations or evade the prohibition on age discrimination through skillfully designed personalized capacity tests and seemingly justified excuses, the practice of unilaterally and unconditionally expelling members of society reaching a certain age out of the labor market has faded into history. 

 

 

Anti-discrimination has long been an integral part of the European Union’s social policies. The European Communities Treaty signed in Amsterdam in 1997 clearly authorizes relevant institutions to “take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”²² Both Article 10 of the Treaty on the Functioning of the European Union and Article 21 of the Charter of Fundamental Rights of the European Union clearly stipulate that discrimination based on age is prohibited. The European Council adopted Directive 76/207/EEC on the Implementation of the Principle of Equal Treatment for Men and Women as Regards Access to Employment, Vocational Training And Promotion, and Working Conditions (Equal Treatment Directive) and Directive 2000/43/EC on the Implementation of the Principle of Equal Treatment Between Persons Irrespective of Racial or Ethnic Origin in 1976 and 2000, respectively, putting forward measures to counter discrimination based on gender, racial origin, and physical and mental disability. In this context, the European Council promulgated Directive 2000/78/EC on the Establishment of a General Framework for Equal Treatment in Employment and Occupation (Framework Directive), urging all EU member states to take effective action to “prohibit discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation.”

 

In this context, EU member states have begun to push forward legislation on anti-ageism in the field of employment since the start of the 21st century. They either built systematic mechanisms to counter age discrimination or incorporated age discrimination into the existing anti-discrimination legal system by amending the laws. The most representative legislation practices in this regard include the Equal Treatment in Employment (Age Discrimination) Act adopted by the Netherlands in 2003, the Employment Equality (Age) Regulations and the Equality Act adopted by the United Kingdom in 2006 and 2010, respectively, the General Act on Equal Treatment adopted by Germany in 2006, and the Prohibition of Discrimination Act adopted by France in 2008. Generally, as a national embodiment of the Framework Directive, such laws related to age discrimination in employment promulgated by European countries demonstrate a certain degree of homoplasy. For instance, most of them categorize age discrimination into direct discrimination, indirect discrimination, harassment, etc., stipulating that the prohibition of age discrimination covers various scenarios of employment and occupation including recruitment, hiring, promotion, remuneration, training, position transfer, and dismissal, and relevant laws and rules are applicable to almost all kinds of workplaces including public institutions, private enterprises, and social organizations.²³ Besides, relevant regulations are similar to those of their US counterparts as well as laws countering discrimination based on gender, racial origin, etc..

 

The most prominent feature of the EU laws on countering age discrimination in employment is their tolerance toward the existing retirement systems. As an important foundation for legal practices countering age discrimination in employment, the Framework Directive declares in its “Preamble” that the Directive “shall be without prejudice to national provisions laying down retirement ages”. Article 6 of the Directive stipulates waiver clauses for discrimination based on age, stating that differences in treatment on grounds of age shall not constitute discrimination, if they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labor market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.²⁴ The waiver clauses stipulated in Article 6 not only include “innate needs based on the reality of certain professions”, which is similar to other reasons for discrimination, but also stress that legitimate employment policy, vocational training and labor market objectives can be used to justify differences of treatment. Such a statement, on the one hand, authorizes EU member states with the right to adjust the rules for defining age discrimination based on their own national conditions and systems, and on the other hand, indicates that the Directive attaches importance to social benefits such as national overall employment policy. 

 

For example, when reviewing the history of European Union’s policies on age discrimination in employment, Tong-Shuan Yang, a scholar from China’s Taiwan region, found that many EU member states’ attitudes toward age discrimination in employment are closely associated with their political considerations for promoting employment. Just as the Treaty on European Union declares, “promoting intergenerational solidarity” has been a constitutional-level goal and mission of the European Union.²⁵ Therefore, this point is taken into account when formulating rules on age discrimination in employment, which thus demonstrate the feature of seeking a “balance between social policies and individuals’ right to equality.” At a time when the unemployment rate of young people remains high due to the economic crisis, the mandatory retirement system that urges older persons to withdraw from work would be considered a proper social arrangement. With the deepening of population aging, the experiences and wisdom of older persons has begun to draw attention. In this context, promoting the employment of older persons has become an important goal of social policies. Therefore, “policies on older workers must shake off the chain of the former mindset of employment discrimination while incorporating the fresh ideas of employment policies.”26 In reality, if the overall employment situation of society is gloomy due to certain problems, it is likely that policymakers will seek trade-offs and adjustments between employment demands of different age groups. Whether this political consideration meets the legal principle of equality or not, in reality it exerts an impact on the policies and legal practices concerning age discrimination in employment.

 

The most prominent manifestation is that compared to the US legal system’s clear attitude in opposing age-based mandatory retirement, the judicial precedents in Europe lay greater emphasis on the importance of the retirement system for promoting employment, safeguarding intergenerational fairness, and protecting the dignity and wellbeing of older workers. For instance, when hearing the case of Felix Palacios de la Villa v. Cortefiel Servicios SA in 2007, the European Court of Justice (ECJ) was required to determine whether the stipulations on mandatory retirement age in Spain’s laws and regulations violate the Framework Directive. According to Spanish laws, standard employment agreements automatically terminate when relevant employees reach the age of 65 unless they have not met the qualification conditions to enjoy the retirement pension in full. Eventually, the ECJ concluded that Spain’s mandatory retirement system meets the requirements of the Framework Directive, especially against the policy background of the high unemployment rate in the country. It also pointed out that the mandatory retirement system is an important way for “a country to fulfill policies on promoting employment through the better intergenerational distribution of work.”²⁷ As for the famous case of Torsten Homfeldt v. Posten Meddelande in 2012, the ECJ stated in the judgment that “it has been a long-standing feature of employment laws of many EU member states to automatically terminate employment contracts with employees meeting relevant age and retirement pension conditions, which has been widely applied in employment practices” and described it as a “balancing mechanism based on political, economic, social, demographic, and budge considerations.”²⁸ Therefore, policy considerations based on balancing pension budgets, promoting employment of young people, etc. can serve as legitimate aims for practices to restrict older persons’ right to work. 

 

It is worth noting that as for the question of whether to maintain or abolish the mandatory retirement system, European countries not only take into account social benefits such as intergenerational interest balance, but also pay particular attention to whether relevant systems can provide substitute protection or other valuable compensations for older workers. In its judgment for the case of Palacios, for example, the European Court of Justice also stressed that the adequacy and accessibility of retirement pension can serve as a criterion to judge whether the mandatory retirement system constitutes an infringement on the rights of older persons.²⁹ Another example is the case of Seldon v. Clarkson Wright & Jakes in the United Kingdom. As the defendant of the case, the law firm admitted that an age-based mandatory retirement agreement is direct discrimination on the grounds of age, but presented six defenses based on legitimate aims, of which three were supported by the court of the first instance and the court of appeal, namely, ensuring colleagues have opportunities to become partners of the law firm after a rational period of working, fulfilling the targeted scale of partners and labor resource plan through dismissal of workers reaching a certain age and restricting practices to force partners to withdraw in the name of performance management, so as to promote a corporate culture featuring amicability and mutual support. The first two defenses involve intergenerational balance in terms of employment opportunity, and the third one is under the excuse of safeguarding the dignity of older employees.³⁰ The court of appeal questioned the rationality of the law firm setting the mandatory retirement age at 65 for safeguarding older employees’ dignity, but at the same time it underpinned that “this does not mean it is groundless to set such an age limit.” The opinion of the court of appeal was backed by the UK’s Supreme Court.³¹ Although the UK courts declared that whether measures on the grounds of age are proper and legitimate needs to be identified based on specific conditions, this actually reflects the universal social cognition on the life cycle of individuals: at least for some specific professions or working environments, the impact of aging does result in a decline of individual competitiveness. That is to say, it is “indecent” to let old persons in society engage in some specific professions. For this reason, the mandatory retirement system can be construed as a practice to enable older persons to withdraw from work based on age instead of labor capacity and give them adequate compensation, which can be regarded as balancing and protecting various rights and interests enjoyed by older persons. 

 

Therefore, the policies of EU member states on countering age discrimination in employment should be understood from two perspectives: On the one hand, age discrimination is regarded as a behavior that violates laws and incurs punishment, and measures should be taken to protect employees’ rights and dignity from infringement by age discrimination deeds; on the other hand, European countries established three-pronged standards for evaluating acceptable differences of treatment: First, such differences of treatment should have just and legitimate purposes; second, the setting of age limit for such differences of treatment should be rational and helpful to realize the aforesaid purposes; third, individuals who suffer losses therein should be provided with adequate compensation. That is, mandatory retirement based on rational standards is acceptable on the premise that the employer provides adequate retirement remuneration and substitute opportunities. 

 

In conclusion, the European Union and the United States have differences in their regulations on age discrimination in employment. Just as some scholars have recognized, the United States takes advantage of the dual spiral of “combining equality and freedom” to protect individuals’ equality and freedom in employment in an “abstract sense,” while the European Union’s legal practice on employment equality is to evaluate an individual’s actual situation according to general social concepts based on the life cycle and then protect the rights of individuals in different stages of the life cycle with collective code of conduct.³² This logic is manifested as dual restrictions on individual rights and social benefits. On the one hand, based on the idea of human rights protection, legal systems become “shields” to shelter individuals’ dignity and freedom from the impact of prejudice and discrimination; on the other hand, laws and regulations on age discrimination play a role of valuable tools to promote social policies aiming to actively tackle population aging. As the oldest criterion for division of labor in society, “age” has not been completely abandoned by European society.

 

 

Japan’s legal reforms in the field of elderly employment aim to build a “society featuring lifetime employment.” Compared to other countries tending to combat age discrimination and protect older persons’ right to work, Japan lays great emphasis on “prolonging the retirement age” and “promoting elderly employment.”³³ The traditional labor and employment pattern in Japan was characterized by the lifetime employment system and seniority-based salary system. Under such an employment pattern, once hired, an employee would work with the same employer for life, and his or her salary increased year by year, until he or she was arranged by the employer to retire and enjoyed retirement remuneration after reaching a certain age (55 years old in most cases).³⁴ Against the backdrop of population aging, this pattern became increasingly unsuitable, forcing Japan to shift its elderly employment policy from “unemployment after retirement” to “promotion of employment.” The Revised Employment Security Act enacted in 1963 and the Employment Measure Act enacted in 1966 stipulate that the government shall provide subsidies for middle-aged and older jobless people seeking employment, and that enterprises have the “duty of endeavor” to ensure that the number of middle-aged and older employees account for 6 percent of the total. In 1971, Japan promulgated the Act on Special Measures Concerning Employment Promotion of Middle-aged and Older Persons, which reconfirmed employers’ statutory duty to maintain a certain proportion of middle-aged and older employees as stipulated in the Employment Measure Act. In 1986, the Act on Special Measures Concerning Employment Promotion of Middle-aged and Older Persons was renamed the Law Concerning Stabilization of Employment of Older Persons, which clarified that Japan adopted a statutory retirement age of 60 and stipulated the “duties of endeavor” of the government and enterprises to fulfill such an objective. With policy adjustments during the 1990s, the statutory retirement age in Japan was gradually raised to 65 years old, but the former “duty of endeavor” undertaken by enterprises turned into “statutory duty.” For instance, Japan’s Revised Law Concerning Stability of Employment of Older Persons, enacted in 1990, added stipulations on enterprises’ “duty of endeavor” to continue to hire employees aged between 60 to 65. The 1994 amendment to the law clarified enterprises’ “statutory duty” not to dismiss employees below the age of 60 without just and legitimate reasons. The 2000 and 2004 amendments further elevated the age limit to 65. The latest amendment enacted in 2021 prolonged the retirement age to 70 years old, considering the need to tackle severe population aging in Japanese society, based on which it re-adjusted the “duties of endeavor” for the government and employers.

 

With the advancement of the country’s legal system in the new century, prohibition of age discrimination in employment was codified for the first time in Japan. However, such prohibition mainly involves recruitment and hiring, with relatively loose waiver clauses. Article 10 of the Employment Measure Act amended in 2007 states that “when regarded as necessary for workers to effectively display their abilities, enterprises shall provide equal opportunities to workers irrespective of age by the guidelines of the Ministry of Health, Labor and Welfare.” Article 18 of the Law Concerning Stabilization of Employment of Older Persons stipulates that in principle, enterprises are banned to set out any age limit for employee recruitment, and if it is necessary to set the standard as below 65, shall explain their reasons in advance to jobseekers. Therefore, age discrimination in recruitment is prohibited by law in Japan. 

 

In terms of age discrimination in employment, Japan also has waiver clauses. According to stipulations of Article 1 of the Implementation Regulations on the Employment Measure Act, the exemption rules of Japan mainly have two features: First, differences in treatment based on the fact of mandatory retirement constitute an exemption from punishment for age discrimination. For example, in the scenario of signing an open-ended employment contract, setting the age limit based on the mandatory retirement age isn’t regarded as age discrimination. Second, differences in treatment on the grounds of job needs and occupational requirements may obtain wider exemptions. Compared to EU and US laws that restrict occupational requirements-based waivers in professions concerning major public security such as firefighting and military, Japanese laws allow defenses such as “vocational capacity that requires long-term training” and “the inheritance of maintaining the consistency of the enterprise’s business services, vocational abilities and skills.” If an enterprise sets age-based recruitment limits for the above-mentioned exemptions, it should, according to the requirements of the Ministry of Health, Labor and Welfare, offer a written explanation on the reasons for setting the aforesaid age limits to relevant job applicants and job agencies.

 

This indicates that the Japanese definition of age discrimination only involves differences in treatment related to employment, and differences in treatment related to salary, benefits, remuneration and other working conditions are excluded from the scope of age discrimination. However, that doesn’t mean the law completely ignores such matters. On the one hand, enterprises must take necessary measures to ensure middle-aged and older employees remain employed until they reach the mandatory retirement age of 65, and if possible, the “future” mandatory retirement age of 70. Pursuant to Article 8 of the Law Concerning Stabilization of Employment of Older Persons, such necessary measures include continued employment (signing a new employment contract or extending the existing employment contract after the employee completes retirement procedures), delayed retirement (enterprises may independently set a retirement age greater than the mandatory retirement age of 65) and abolishment of retirement (namely, lifetime employment). Enterprises shall choose one of the three measures. In addition, laws and regulations such as the Revised Law Concerning Stability of Employment of Older Persons require enterprises to “endeavor” to improve the working conditions for older employees and stipulate many duties and obligations, including but not limited to providing special training programs, improving workplace environments, and offering flexible working hours and proper payments. Moreover, relevant laws and regulations authorize and require the Japanese government to introduce incentive and supportive policies to guide and encourage enterprises to extend the period of employment, so as to build a “society featuring lifetime employment” in which everyone can work until the age of 65 and even the end of life upon their own will and capability. These supportive measures include establishing institutions like silver-haired personnel service centers. Such silver-haired personnel service centers are service institutions targeting middle-aged and older jobseekers, which offer services such as vocational training and job opportunities information to older persons. So far, they have become the key channel for older persons to seek jobs in Japan. The 2017 revision of the Social Security Law annulled the age limit for unemployment insurance. That means persons aged 65 or above can also be covered by unemployment insurance, except that it is special unemployment insurance named “subsidy for older job applicants” and its payment method and standard is different from that for the unemployed below 65 years old. For enterprises, such supportive measures include allowances such as an “aid package for promoting continued employment” and “incentive for increasing the retirement age.”³⁵ If an employer maintains a certain proportion of middle-aged and older employees, it can not only obtain financial incentives, but also gain honorable benefits such as an enhanced corporate image. Under the coordination and planning of the government, older persons who are willing to work collaborate with enterprises to jointly promote the implementation of the prolonged and even lifetime employment strategy in Japan.

 

Compared with European and American modes, Japan’s elderly employment system adopts a “soft plan” featuring “social cooperation” rather than a “hard mode” featuring “litigation and claims,” which is its most prominent characteristic. Leveraging measures such as subsidies, public services, and commendations and incentives, the government encourages and guides enterprises to provide job opportunities and working environments for older persons, thus enabling them to continue working. It is worth noting that Japan doesn’t have any stipulation on mandatory punishment for those who violate the aforesaid obligations. In accordance with the Law Concerning Stabilization of Employment of Older Persons and the Employment Measure Act, if an enterprise fails to fulfill its obligations in this regard actively or passively, the consequence is that it will receive “advice,” “exhortation” or “guidance”from the Minister of Health, Labor and Welfare. From the perspective of law-based governance, the efficacy of this implementation mechanism is doubtable. Just as a Japanese representative to the UN agencies once stated, although more and more older persons who have reached the retirement age obtain job opportunities, they cannot enjoy protection from the labor law due to the lack of a specialized legal rights protection mechanism and because they aren’t even regarded as “employees” in some cases, and in reality they face discriminatory treatments in terms of working environment and salary.³⁶ 

 

Perhaps the prudent attitude of the Japanese government toward the abolishment of mandatory retirement and anti-ageism in employment is closely associated with the country’s occupational traditions and cultural background. The seniority-oriented tradition of human resources management based on age has a long history in Japan, and the long-standing “school-workplace-home” life trajectory still impacts the way of thinking and decision-making of the Japanese people. If Japan implements an elderly employment system that deviates from the aforesaid life cycle through coercive legal measures, it will undoubtedly face tremendous resistance and might even escalate the intergenerational contradiction. Based on this consideration, Japan chose a “reciprocal” path of gradual reform. In related system design, the relationship between older employees and employers is not one between “inflictor” and “victim,” and older and younger laborers do not compete for employment resources. On the contrary, through investing in public projects and formulating employment plans based on the needs of an aging society, the government takes incentive measures to mobilize and unite all stakeholders to jointly build a society of “lifetime employment” and overcome the challenges arising from population aging.³⁷

 

 

Age discrimination in employment severely hinders older persons from enjoying their human rights like others, and exerts an enormous negative impact on the fulfillment of social strategies addressing the challenges of population aging. Many countries have taken legal actions in many areas, with an aim to eliminate age discrimination in labor and employment and protect older persons’ right to work. The practices of the United States, European Union and Japan show that age discrimination is rooted in stereotypes about the relationship between age and working capacity. A prerequisite for legal reform plans to prohibit age discrimination and protect older persons’ right to work is the radical reflection on and change in the public view of age, so as to implement action plans that meet the needs of economic and social development and achieve the balance of benefits for different generations. Ultimately, when considering the future development of global topics related to older persons, we should take more human rights elements into account, review the existing legal framework based on human rights standards, express relevant institutions and practices with human rights discourse, and accelerate the formulation of specialized international human rights instruments. 

 

 

From the perspective of anti-ageism, it is obvious that public views of aging and old age need fundamental changes. If old age is still defined as a stage of the life cycle characterized by vulnerability and dependence, it will still be impossible to eradicate age discrimination, no matter how complete relevant protection measures are; on the contrary, this will only result in worse stereotypes about older persons. As a scholar pointed out, “if a legal rule determined by legislation or judicial procedures makes ‘age’ the sole criterion for judging an individual’s capacity and situation while failing to give any objective proof, this rule is suspected of constituting age discrimination.”³⁸ More importantly, the dualist division between “old people” and “young people” based on age may escalate intergenerational divergence and even intergenerational antagonism, thus further worsening the situation of discrimination and abuse against older persons that is already severe.

 

From the perspective of a full life cycle, aging is a universal and continuous process of interactions between individuals and society, which doesn’t have a certain age limit. First of all, the social status, resources, and capacity that an individual can have in his or her old age are a result of uninterrupted accumulation in the full life cycle. Therefore, we shouldn’t understand an individual’s capacity and needs merely from the perspective of age-based “senility,” but should look farther and wider to observe the life experience of “those who haven’t reached an old age” in fields like education, healthcare, employment and social security from the perspective of “actively tackling population aging”. In addition, aging is a process in which individuals and society continuously interact with each other. Just as the concept of “active aging” advocated by the World Health Organization indicates, active aging is “the process of optimizing opportunities for health, participation, and security in order to enhance the quality of life as people age”.³⁹ Under supportive measures of “empowerment”, older persons can maintain health and active status, participate in social life, and make contributions to social development.

 

In terms of employment, active aging means older persons have the potential to become valuable, high-yield laborers like younger ones. However, we must admit that aging may bring unique challenges to the employment of older persons, and it there is a cost involved in cultivating and developing older persons’ working capacity. Just as Japan’s relevant policies and laws reveal, promoting the full participation of older persons in work requires special arrangements in many areas, such as vocational education and training, working environment, and salary and benefits, most of which need extra costs. Therefore, the key to countering age discrimination in employment doesn’t lie in denying the unique challenges and costs faced by older persons, but in fair distribution of costs among stakeholders including enterprises, older employees, and the government by means of policies and laws. 

 

Particularly, the right to work is a basic human right enjoyed by older persons. Ensuring older persons fully enjoy the right to work is not only a requirement of international human rights conventions, but also confirmed by China’s Constitution. Therefore, we need to construct a legal framework to protect older persons’ right to work based on the concept of “active aging” featuring equality and empowerment. This framework, first of all, should recognize and respect older persons’ autonomy, equal capacity, and personal dignity and protect their right of choice from age discrimination; on the other hand, it should clarify the positions and duties of the government, enterprises and other stakeholders, create a friendly environment that facilitates older persons to enhance their capacity and participate in social life, and push the elderly to fulfill their life value and make contributions to social development on a voluntary, autonomous basis. 

 

 

The above parts of the paper respectively introduce the experiences of the United States, the European Union and Japan to regulate age discrimination in employment and protect older persons’ right to work by legal means. Due to differences in the social environment, cultural tradition, employment policy and other areas, their relevant legal systems show totally different operating logic. The US mode tries to eliminate the division of people on the grounds of age, so as to ensure members of society of different generations compete with each other at least on the basis of formal equality. Under the long-term influence of corporatism, the EU policies tend to “intergenerational cooperation” and consider age-based retirement arrangements as tools to protect older persons’ dignity and wellbeing and as institutional plans to balance the rights and interests of different generations. This feature becomes particularly prominent in Japanese society that has a long-standing “seniority” tradition and attaches greater importance to older persons’ value in life and family. In addition, from the perspective of a full life circle, social policies to promote employment of young people, to some extent, play a role in facilitating the fulfillment of the right to work for “future older persons.” Besides, “human rights of older persons” should be analyzed by taking into account different social and cultural backgrounds. Self-reliant and independent market entities under neo-liberalism provide an important perspective to understand older persons, but the connotations of older persons are far more than just that. In some ways, older persons do demonstrate unique vulnerability. However, old age shows different cultural traits in different societies. For this reason, when formulating relevant laws and institutions, we must give comprehensive consideration to corresponding social and cultural environments. 

 

China’s National Plan for the Development of the Undertakings for the Aged and the Eldercare Service System during the 14th Five-Year Plan Period (2021-2025) clarifies that China will “implement a gradually delayed mandatory retirement age.” That means the reform of the retirement age has been put onto the agenda. The current retirement system reform mainly aims to explore elderly human resources and balance pension payments, and hasn’t paid enough attention to countering age discrimination and protecting older persons’ right to work yet. To strengthen the protection of older persons’ rights and improve the overall effectiveness of policies for the aged, China can take the opportunity of mandatory retirement age reform to advance legislation on combating age discrimination in employment step by step. For now, institutional measures that China can take mainly include the following: 

 

First, stepping up legislation on age discrimination in employment and clarifying the definition, manifestations and relief channels for age discrimination in employment. Currently, Chinese laws concerning employment discrimination only include the principle of ensuring citizens’ equal right to employment, and don’t have specific stipulations on age discrimination. There are no laws and regulations to follow in the field of age-based differences of treatment in recruitment, hiring, remunerations, and working environment, and it is hard for workers to get legal relief if their rights and interests in this regard are infringed. Therefore, it is necessary for China to push forward relevant legislation, so as to incorporate rules concerning age discrimination in the law on age discrimination in employment and the labor law, and clarify legislation objectives, the definition of age discrimination, and relief methods. Considering China’s current national conditions, relevant legislation may adopt a progressive approach and be combined with retirement and eldercare security system reforms. On the basis of maintaining the consistency of the definition of discrimination, it can formulate waiver clauses and exemption rules for age discrimination in line with its actual circumstances, adjust the existing retirement standards and methods while acknowledging the legitimacy of mandatory retirement, and enhance the coordination and coupling of the retirement system with other systems in the field of labor and social security. According to legal practices of the European Union and Japan, whether mandatory retirement should withdraw or not remains a debatable question. However, one thing is certain: retirement doesn’t mean an end of the protection of one’s right to work. China should clarify the relationship between pension insurance and the protection of the right to work through legislation and juridical interpretations, formulate special social security rules for reemployed retirees and place them under the protection of the labor law. 

 

Second, building a rational policy system to explore elderly human resources and promote elderly employment. Combating age discrimination in employment and exploring elderly human resources are two sides of the same coin. Just as the US experience has revealed, without a fair elderly human resources development system, prohibiting age discrimination in form only generates negative results: Enterprises would rather evade the prohibition of age discrimination at the cost of money and resources than invest in building a working environment that facilitates older persons’ social participation. Moreover, only through integrated reform plans involving education, healthcare, nursing, accessibility, etc. can we substantively enhance older persons’ occupational competitiveness and enable them to participate in employment equally, instead of being trapped in “dirty, arduous and exhausting” low-paying jobs that “young people don’t want to do.” We should establish a flexible retirement system that respects older persons’ own will, provide them with opportunities for vocational training and lifetime learning, and push public employment services to benefit elderly job seekers. At the same time, we should encourage and guide enterprises to renovate the working environment while protecting labor rights to provide more job opportunities for older persons. 

 

Finally, strengthening intergenerational communication and creating a sound social atmosphere for intergenerational cooperation. The protection of older persons’ rights including the right to work is not just an issue of older persons themselves, but is closely associated with all members of society; it is an “across-generation project” that requires equal consultation and joint efforts of several generations. Therefore, we should build platforms for sufficient communication and equal consultation between generations, ensuring older persons and “those who are about to become aged” participate in the formulation process of laws and policies related to elderly employment and age discrimination. This is not only because participating in policy formation itself demonstrates the fulfillment of human rights, but also because the process reflects respect for older persons’ experience, wisdom and autonomy and represents the strongest refutation against prejudice and discrimination. Besides, communication and cooperation can facilitate interaction and integration between different generations, help eliminate stereotypes about older persons and the view of a “zero-sum” intergenerational game to compete for job opportunities and create a social environment featuring mutual respect and inclusiveness. 

 

 

Many countries have taken a series of actions against age discrimination in employment, for the purpose of ensuring older persons fully enjoy the rights stipulated in human rights instruments such as the International Covenant on Economic, Social and Cultural Rights. However, the latest report submitted by the UN High Commissioner for Human Rights stated that “the international human rights framework neither has a clear guarantee to prevent ageism-based discriminatory treatments nor clarifies countries’ obligation to take active measures to eliminate the consequences of ageism and its resulting discrimination.” The lack of common ground and standards causes countries to “fight their own battles” in legal practices combating age discrimination in employment, which greatly impacts communication and cooperation among countries in terms of institutionalized anti-ageism, experience and practice.

 

The “absence” of older persons in international human rights regulations has drawn wide attention. As early as 2010, the 65th session of the United Nations General Assembly adopted a resolution that decided to establish an Open-Ended Working Group on Ageing “for the purpose of strengthening the protection of the human rights of older persons by considering the existing international framework for the human rights of older persons and identifying possible gaps and how best to address them, including by considering, as appropriate, the feasibility of further instruments and measures.”⁴⁰ Resolution 67/139 passed in 2012 required the working group to adopt a “holistic approach” to deliberate on “proposals for an international legal instrument to promote and protect the rights and dignity of older persons.”⁴¹ Resolution 70/164 adopted in 2015 required the working group to discuss measures to “enhance the promotion and protection of the human rights and dignity of older persons, such as best practices, lessons learned and possible content for a multilateral legal instrument.”⁴²

 

Age discrimination is a key concern of the working group. In a 2021 report, the Independent Expert on the Enjoyment of All Human Rights by Older Persons suggested including “ageism and age discrimination in human rights monitoring” and regulations and institutions on age discrimination in “a comprehensive binding legal instrument on the human rights of older persons.”⁴³ Formulating particular international human rights conventions and instruments for older persons is of great significance for combating age discrimination globally. On the one hand, such conventions can clarify the definition, manifestations and exemptions of age discrimination, provide stipulations on older persons’ right to be free from discrimination and other human rights in an open, clear-cut way, admit the uniqueness of older persons, and combat stereotypes about older persons. On the other hand, international conventions that win wide recognition can help various countries convert the ideas addressing population aging such as “active aging” into concrete, feasible actions and strategies. Universal human rights standards are conducive for countries to review and adjust their existing strategies on the basis of communication and mutual learning, so as to eliminate possible stereotypes and institutional discrimination in relevant systems.

 

We must admit that although countries around the world have reached a consensus on the necessity to ensure older persons’ full enjoyment of all human rights, there are still different views on what practical plans and strategies to implement in the tide of population aging. In face of divergences and debates, the right way is to confront differences and seek common grounds in the principle of feasibility. China has a long-standing fine cultural tradition of respecting, supporting and assisting the elderly and unique intergenerational cooperation practices, and has formed a foresighted, holistic and feasible national strategy for actively addressing population aging. In this context, China should adapt to the changes and trends of human rights approaches to address the international issue of aging, actively participate in the formulation of international conventions on the rights of older persons, strengthen interaction and cooperation with relevant UN agencies and other international organizations, and take an active part in relevant activities under the UN framework. Also, China should express its own ideas and practical experiences on the protection of older persons’ rights with human rights discourse, forge a human rights discourse system for older persons, and take the initiative and gain a say in accelerating the formulation of international human rights conventions, especially for older persons. 

 

 

Age discrimination in employment is a major obstacle hindering older persons from full enjoyment of all human rights. It not only directly determines whether older persons can equally enjoy the right to work, but also impacts whether older persons can maintain economic independence, equal personal dignity and social participation. Especially in the 21st century when population aging is accelerating and ways of life are changing rapidly, combating age discrimination in employment under the legal framework and supporting older persons in participating in “paid” or “unpaid” labor on the basis of independence and equality are of great significance for improving the financial situation of older persons and helping them adapt to the lifestyles in the digital era and maintain physical and mental health. The existing legal practices concerning age discrimination in employment all demonstrate the contradiction and balance between social development and individual rights. Institutional plans that put undue emphasis on formal equality and individual autonomy may result in inequality and social rejection in reality, and legal practices based on social employment policies may cause restriction and even deprivation of individuals’ right of choice.

 

In this circumstance, the approaches based on human rights become feasible options for balancing social development and individual rights. We must be aware that age discrimination not only damages the capacity and opportunity of older persons who are a “precious resources due to their unique experiences and knowledge” to make contributions to social development, but in nature infringes on human rights. We should observe the phenomenon of age discrimination in employment from the perspective of human rights, and review the existing legal systems and advance institutional reforms according to the standards stipulated in international human rights instruments. At the same time, we should, on the basis of summing up useful experiences and seeking the widest consensus, explore and push forward the formulation of international human rights instruments, especially for older persons.

 

(Translated by LIU Haile)

 

* ZHOU Lulu ( 周露露 ), Head of Guangzhou University Institute for Human Rights. Doctor of Laws. This paper is a phased result of the key project “Studies on the Practical Value and Strategies for Fostering Public Recognition of the Rule of Law in Contemporary China” (Project Approval No. 17ZDA128) under the National Social Science Fund of China.

 

1. Claudia Mahler, Report of the Independent Expert on the Enjoyment of All Human Rights by Older Persons, UN.DOC.A/HRC/48/53.

 

2. CESCR, “General Comment No. 6: The economic, social and cultural rights of older persons,” see Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN-.DOC.HRI/GEN/l/Rev.9 (Vol.1).

 

3. Article 8 (1) of the Convention on the Rights of Persons with Disabilities states: “States Parties undertake to adopt immediate, effective and appropriate measures: a) To raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities; b) To combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life; c) To promote awareness of the capabilities and contributions of persons with disabilities.” Article 1 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families states: “The present Convention is applicable, except as otherwise provided hereafter, to all migrant workers and members of their families without distinction of any kind such as sex, race, color, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic status, property, marital status, birth or other status.”

 

4. CESCR, “General comment No. 6: The economic, social and cultural rights of older persons,” see Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, HRI/GEN/l/Rev.9 (Vol.1). Of course, CESCR calls on the States Parties to eliminate such barriers to the greatest extent possible. 

 

5. CESCR, “General comment No. 18: The right to work (art. 6)”; CESCR, “General comment No. 20: Non-discrimination for economic, social and cultural rights (art. 2 (2) of the International Covenant on Economic, Social and Cultural Rights). 

 

6. Report of the Open-ended Working Group on Aging on Its Eleventh Session, UN.DOC.A/AC.278/2021/2.

 

7. Robert N. Butler, Why Survive? Being Old in America (New York: Harper &Row, 1975).

 

8. Erdman Ballagh Palmore, Ageism: Negative and Positive (Berlin: Springer, 1990), 4 -6.

 

9. Bill Bytheway, Ageism (London: Open University Press, 1995), 130.

 

10. Claudia Mahler, Report of the Independent Expert on the Enjoyment of All Human Rights by Older Persons, A/HRC/48/53.

 

11. Liu Xiaonan, etc., Teaching Materials on Anti-Discrimination Laws: Text and Cases (Beijing: Law Press · China, 2016), 234.

 

12. Robert Arking, The Biology of Aging Observations and Principles (Oxford: Oxford University Press, 2006).

 

13. WHO, The Global Report on Ageism, WHO, 2021, page 26.

 

14. According to the routines of the UN Statistics Division, the age of 60 is used as a boundary between “younger” and “older” people. However, the Eurostat holds that the old-aged refer to those aged 65 and over because the most common retirement age is 65 years old. Many start to enjoy full social security allowance for older persons from the age of 65. Besides, laws and regulations of most countries adopt 60 or 65 years old as the age limit to define “older persons,” see He Yanhua, Studies on the Rational Construction of the Convention on the Rights of Older Persons (Beijing: Law Press · China, 2017), 29. 

 

15. Generally speaking, the main beneficiaries of nursing allowance are older persons and persons with disability.

 

16. For example, Article 6 of the Directive 2000/78/EC for the general framework for equal treatment in employment and occupation.

 

17. Edward P. Lazear, “Why Is There Mandatory Retirement?”, Journal of Political Economy 87 (1979): 1261-1284. It is worth noting that at present the retirement benefits in most countries are usually “multi-pillar,”which are comprised of not only government-dominated social pension insurance but also annuities organized by enterprises and commercial pension plans arranged by individuals themselves. The concept of “substitute payments” coined by economists mainly refer to enterprise annuities, namely the “secondary pillar.”From the perspective of the right of social security, as the “primary pillar,” social pension insurance should not be construed as a consideration for “withdrawing from work.”

 

18. Richard Posner, Aging and Old Age, Zhou Yun trans. (Beijing: China University of Politic Science and Law Press, 2001), 397.

 

19. Lyu Yiwei, “The Rules of U.S. Age Discrimination in Employment Act and Their Implications to China,” Law Science Magazine 1 (2001). 

 

20. It is noteworthy that employment isn’t the sole field concerned by the US anti-ageism laws. The Age Discrimination Act of 1975 clearly stipulates that any project funded by the federal government shall prohibit discrimination based on age, unless reasonable consideration on age is a necessary factor determining the normal operation of the project. 

 

21. Sandra Fredman and Sarah Spencer, Age as an Equality Issue — Legal and Policy Perspectives (Oxford: Hart Publishing, 2003), 139 and 182.

 

22. Xia Jianzhong, “Historical Development of EU’s Social Policies and Its Implications,” Journal of Nantong Normal College (Philosophy and Social Science Edition) 2 (2002).

 

23. For a thorough review of legislation concerning age discrimination in employment in the UK, Germany and France, please refer to Li Haiming, “Legislation Rules and Judicial Precedents Regarding Mandatory Retirement in the UK and Their Implications,” Law Science 9 (2013); Li Haiming and Zhang Yun, “Indirect Age Discrimination Cases in the UK and Their Implications,” Western Law Review 2 (2015); Lou Yu, “Defenses for Discrimination in Employment in Accordance With German Laws — On the Lessons That China Can Learn in the Realm,” Tsinghua University Law Journal 8 (2014); Tao Jianguo and Gao Liyan, “Countermeasures and Right Remedy for Prohibiting Age Discrimination in Employment in France,” Journal of Baoding University 6 (2013); Yu Jiamian and Chen Ling, “International Experiences and Lessons on the Protection of Older Persons’ Right to Work,” Ningxia Social Sciences 3 (2021), etc.. This paper hereby doesn’t give any unnecessary details. 

 

24. Directive 2000/78/EC on the establishment of a general framework for equal treatment in employment and occupation.

 

25. Article 3. 3 paragraph 2 TEU states, “it shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child.” See Consolidated Version of the European Union 2016.

 

26. Tong-Shuan Yang, “A Study of EU Legal System for Age Discrimination in Employment,” Soochow Law Journal 4 (2017).

 

27. Felix Palacios de la Villa v. Cortefiel Servicios SA, Case C-411/05, [2009] ICR 1111.

 

28. Torsten Hörnfeldt v. Posten Meddelande AB C-141/11 EU: C: 2012: 421. para. 28.

 

29. Felix Palacios de la Villa v. Cortefiel Servicios SA, Case C-411/05, [2009] ICR 1111. para. 73

 

30. Li Haiming, “Legislation Rules and Judicial Precedents Regarding Mandatory Retirement in the UK and Their Implications,” Law Science 9 (2013).

 

31. Seldon v. Clarkson Wright & Jakes [2011] All ER 770 and Seldon v. Clarkson Wright and Jakes (A Partnership) [2012] UKSC 16.

 

32. Julie C. Suk, “From Antidiscrimination to Equality: Stereotypes and the Life Cycle in the United States and Europe,” The American Journal of Comparative Law 60 (2012): 75-98.

 

33. Cai Dingjian and Liu Xiaonan, Expert Proposals and Foreign Experiences for Countering Discrimination in Employment (Beijing: Social Sciences Academic Press, 2010), 92; Lin Liangrong, “Comments on Legislation Policy Concerning the Act on Employment Promotion for Middle-high-aged and Older Persons — A Study on Japan’s Practical Experiences in Maintaining the Stability of Employment of Older Laborers,” The Taiwan Law Review 6 (2020).

 

34. Cui Yingchun, “Japan’s Policy on Employment of Older Persons in the Context of Population Aging,” Journal of Anhui Normal University (Humanities and Social Sciences) 4 (2014).

 

35. Cui Yingchun, “Japan’s Policy on Employment of Older Persons in the Context of Population Aging,” Journal of Anhui Normal University (Humanities and Social Sciences) 3 (2014); Lin Liangrong, “Comments on Legislation Policy Concerning the Act on Employment Promotion for Middle-high-aged and Older Persons — A Study on Japan’s Practical Experiences in Maintaining the Stability of Employment of Older Laborers,”The Taiwan Law Review 6 (2020).

 

36. Japan Support Center for Activity and Research for Older People, “The Answers to Guiding Questions for Focus Area: Right to Work and Access to the Labor Market, OWEGA”.

 

37. It is worth noting that it isn’t a practice unique to Japan to guide, encourage and help older persons to obtain job opportunities through public programs and financial support. Many European countries have also formulated transitional promotion plans beyond employment equality services. For instance, France has introduced “lifetime contracts” and “new opportunity contracts” and encourages enterprises to hire older jobseekers through financial assistance. Submission by France to the 10th Session of Open-Ended Working Group on Ageing.

 

38. Linda. S. Whitton, “Ageism: Paternalism and Prejudice,” Depaul Law Review 46 (1997).

 

39. WHO, Active Ageing: A Policy Framework, China National Committee on Ageing trans. (Beijing: Hualing Press, 2003), 9.

 

40. Resolution Adopted by the UN General Assembly, “Follow-up to the Second World Assembly on Ageing,”A/RES/65/182.

 

41. Resolution Adopted by the UN General Assembly, “Towards a comprehensive and integral international legal instrument to promote and protect the rights and dignity of older persons,” A/RES/67/139.

 

42. Resolution Adopted by the UN General Assembly, “Measures to enhance the promotion and protection of the human rights and dignity of older persons,” A/RES/70/164.

 

43. Claudia Mahler, Report of the Independent Expert on the Enjoyment of All Human Rights by Older Persons, A/HRC/48/53.