Anti-Age Discrimination in Hiring

Anti-Age Discrimination in Employment Act under R.A. No. 10911 was approved on July 21, 2016.

Its constitutional underpinnings are as follows:

(a) Promote employment of individuals on the basis of their abilities, knowledge, skills and qualifications rather than their age.

(b) Prohibit arbitrary age limitations in employment.

(c) Promote 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 terms defined in the law which have relevance in the interpretation are:

1. The term “Employee” refers to a person who performs professional, managerial or administrative work and is paid salaries by the employer as compensation for services rendered.
2. The term “Employer” refers to any person, natural or juridical, employing the services of an employee or worker and shall include the government and all its branches, subdivisions and instrumentalities, all government-owned and -controlled corporations, and government financial institutions, as well as nonprofit private institutions or organizations.
3. The term “Job “applicant refers to a person who applies for employment.
4. The term “Labor contractor” refers to any person or an agent of that person who regularly undertakes, with or without compensation, the procurement of employees or workers for an employer, or the procurement for employees’ or workers’ opportunities to work for an employer.
5. “Labor organization” refers to any union or association of employees or workers which exists in whole or in part for the purpose of collective bargaining or for dealing with employers concerning terms and conditions of employment.
6. The term “Publisher” refers to any person or juridical entity engaged in the printing of information on paper and its distribution, buying or securing of airtime or space on television, radio or the internet, and other similar media and
7. The term “Worker” refers to a person who performs manual labor involving skilled or unskilled work, and is paid wages by the employer as compensation for services rendered.

The provisions of the law apply to all employers, labor contractors or subcontractors, if any, and labor organizations. This means that companies may sometimes engage the services of contractors whose employees are not the employees of the client or principal. The rules on anti-discrimination as to age applies in this arrangement.

The same is true with companies that are organized or with union. Labor organization means a union. The provisions of the law apply to this situation as well.

The law prohibits discrimination in employment on account of age. Thus:

(a) It shall be unlawful for an employer to:[1]

(1) Print or publish, or cause to be printed or published, in any form of media, including the internet, any notice of advertisement relating to employment suggesting preferences, limitations, specifications, and discrimination based on age;

(2) Require the declaration of age or birth date during the application process;

(3) Decline any employment application because of the individual’s age;

(4) Discriminate against an individual in terms of compensation, terms and conditions or privileges of employment on account of such individual’s age;

(5) Deny any employee’s or worker’s promotion or opportunity for training because of age;

(6) Forcibly lay off an employee or worker because of old age; or

(7) Impose early retirement on the basis of such employee’s or worker’s age.

(b) It shall be unlawful for a labor contractor or subcontractor, if any, to refuse to refer for employment or otherwise discriminate against any individual because of such person’s age.

(c) It shall be unlawful for a labor organization to:

(1) Deny membership to any individual because of such individual’s age;

(2) Exclude from its membership any individual because of such individual’s age; or

(3) Cause or attempt to cause an employer to discriminate against an individual in violation of R.A. 10911.

(d) It shall be unlawful for a publisher to print or publish any notice of advertisement relating to employment suggesting preferences, limitations, specifications, and discrimination based on age.

There are exceptions to the prohibitions. The law enumerates that it shall not be unlawful for an employer to set age limitations in employment if:[2]

(a) Age is a bona fide occupational qualification reasonably necessary in the normal operation of a particular business or where the differentiation is based on reasonable factors other than age;

(b) The intent is to observe the terms of a bona fide seniority system that is not intended to evade the purpose of R.A. 10911;

(c) The intent is to observe the terms of a bona fide employee retirement or a voluntary early retirement plan consistent with the purpose of R.A. 10911: Provided, That such retirement or voluntary retirement plan is in accordance with the Labor Code, as amended, and other related laws; or

(d) The action is duly certified by the Secretary of Labor and Employment in accordance with the purpose of R.A. 10911.

Bona Fide Occupational Qualification (BFOQ)

The rule on bona fide occupational qualification (BFOQ) employment states that employment in particular jobs may not be limited to persons of a particular sex, religion, or national origin unless the employer can show that sex, religion, or national origin is an actual qualification for performing the job.[3]

Meiorin Test

There are many principles and doctrines related to BFOQ that the employer needs to understand considering that the Philippine Supreme Court tests cases of discrimination based on them. In one case, the SC looked at the Meiorin Test.

The looked at the decision of the Supreme Court of Canada which adopted the so-called “Meiorin Test” in determining whether an employment policy is justified.

Under this test, (1) the employer must show that it adopted the standard for a purpose rationally connected to the performance of the job; (2) the employer must establish that the standard is reasonably necessary to the accomplishment of that work-related purpose; and (3) the employer must establish that the standard is reasonably necessary in order to accomplish the legitimate work-related purpose.

BFOQ Standards in Star Paper Case

Similarly, in Star Paper Corporation vs. Simbol, (G.R. No. 164774, April 12, 2006, 487 SCRA 228.), it was held that in order to justify a BFOQ, the employer must prove that:

(1) the employment qualification is reasonably related to the essential operation of the job involved; and

(2) that there is factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job.

In short, the test of reasonableness of the company policy is used because it is parallel to BFOQ. According to the SC, BFOQ is valid “provided it reflects an inherent quality reasonably necessary for satisfactory job performance.”

The Philippines has no particular law on BFOQ. Does this mean that the BFOQ cannot anymore be adopted in the country?

         The SC held in Yrasuegui vs. Philippine Airlines, Inc.[4] that there is no merit to the argument that BFOQ cannot be applied if it has no supporting statute. In ruling on the issue of whether an airline company can impose weight standards the SC held that a common carrier, from the nature of its business and for reasons of public policy, is bound to observe extraordinary diligence for the safety of the passengers it transports. It is bound to carry its passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances.

Further, the SC held that the law leaves no room for mistake or oversight on the part of a common carrier. Thus, it is only logical to hold that the weight standards of PAL show its effort to comply with the exacting obligations imposed upon it by law by virtue of being a common carrier.[5]

Penalty for Discrimination Based on Age

R.A. 10911 provides that any violation of the law shall be punished with a fine of not less than fifty thousand pesos (₱50,000.00) but not more than five hundred thousand pesos (₱500,000.00), or imprisonment of not less than three (3) months but not more than two (2) years, or both, at the discretion of the court.[6]

If the offense is committed by a corporation, trust, firm, partnership or association or other entity, the penalty shall be imposed upon the guilty officer or officers of such corporation, trust, firm, partnership or association or entity.

Mandate for the DOLE

The Department of Labor and Employment (DOLE) is mandated to:

(a) Conduct studies and researches on minimizing impediments to the employment of older persons, and furnish such information to employers, labor groups, and the general public; and

(b) Promote programs, in coordination with public and private agencies, that will further enhance the knowledge and skills of every individual regardless of age.

[1] Section 5, R.A. 10911.

[2] See Section 6, R.A. 10911.

[3] Yrasuegui vs. Philippine Airlines, Inc., G.R. No. 168081, October 17, 2008.

[4] G.R. No. 168081, October 17, 2008.

[5] Ibid

[6] See Section 7, R.A. 10911.