age discrimination law

Enactment Of Anti-Age Discrimination Law In The

Philippines

VLADIMIR JOPHIL S. LINAWAN BSLM-4A

Abstract

The Constitution mandates that the State shall afford full

protection to labor, promote full employment and equality of

employment opportunities for all.

This broad declaration ought to include that an individual

should not be discriminated because of his or her age, but this

precept seems to have been left out in labor laws.

Following the constitutional mandate, the Labor Code

specifically provided the protection of labor, promotion of full

employment, and equalization of work opportunities regardless

of sex, race, or creed; however, the same did not include age.

The void left by such flaw permitted the employers to have

free reign in the exercise of their own discretion whether or not

to accept an applicant based on his/her age.

The abuse of this discretion, however, bars competent and

skilled applicants who are considered to be past the age bracket

for employment (usually individuals 40 years old or above).

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2 Enactment of Anti-Age Discrimination Law in The Philippines

Presently, aging in the Philippines is becoming a struggle;

many older Filipino workers are either compelled to retire early

or refused by employers upon application and must find other

sources of income.

Keeping up with an uncertain economy with a high cost of

living barely makes ends meet, especially when work is hardly

practicable upon reaching a certain age.

Therefore the enactment of a law to end age discrimination

and level the playing field in employment is timely needed.

I. Introductory

Aging workers devise various means to gain income, some

engage in various sidelines or rackets, but many have taken

flight to look for greener pastures in foreign lands.

This is because they cannot find employment in the

country even though they have the necessary qualifications for

they are refused by many employers on account of their age.

This practice of discrimination on account of age is called

ageism or age discrimination.

The typical example of this practice can be seen in various

advertisements pertaining to employment opportunities

typically containing job descriptions and qualifications that

includes a strict age requirement. It is evident that age

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3 Vladimir Jophil S. Linawan BSLM-4A

discrimination in employment is a widely recognized form of

discrimination but taken too lightly in the Philippines.

The 1987 Constitution prescribes full protection to labor,

local and overseas, organized and unorganized, and promote

full employment and equality of employment opportunities for

all.1

This broad statement includes the command that no

individual should subjected to discrimination on account of his

/her age, sex, religion, or political beliefs. It is therefore an

oddity that the subject of age was left out in subsequent labor

legislations particularly the labor code.

In accordance with the constitution, the labor code

partially embodied the protection of equal opportunities. The

provision pertinently provides:

Art. 3. Declaration of basic policy.

The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed and regulate the relations between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of tenure, and just

and humane conditions of work. 2 [Emphasis supplied].

1 See Phil. Const. (1987), Art. XIII, Sec. 3 2 Pres. Decree No. 442 (1972) The Labor Code of The Philippines, Article 3

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This declaration however did not include age, as a ground

for protection, granting employers the prerogative of barring

qualified applicants deemed to be beyond the bracket of

acceptability in terms of age.

To circumvent this circumstance, many have taken the

matter into their own hands by committing forgeries, creation

of false identities, and all kinds of deception; just to have an

impression of being young to qualify for a job, and it is the

applicant who must face the consequences of crossing the law.

Is this a risk that an applicant should to take? Just to get a job?

Why not equalize the playing field by lifting the barrier of

ageism in the field of labor and employment by implementing a

statute to cover the inadequacy of the law, and bring qualified

older applicants at par with the younger ones in terms of

employment opportunities?

Presently, the economy of the Philippines is precarious

and coupled with skyrocketing prices of basic necessities; the

need of employment for aging Filipinos becomes more important

as the years advance. Because even the benefits of retirement

have started become inadequate, and many of these people still

have families to sustain. So where do these people turn to?

The answer is employment.

However, rampant ageism in the Philippines leaves them

with slim chances.

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It is therefore significant to discuss this issue that has

always been side tracked, bring it into the light, and address it.

Hence, this work advocates the enactment of an Anti-Age

Discrimination Employment Law in the Philippines to expand

the scope of the constitutional mandate for equal employment

opportunities.

The discussion will progress in the following order: The

concept of Ageism, (2) Ageism in the Philippine Labor, (3)

Analysis, (4) Effects of Age discrimination, (5) Status Quo in

Philippine Jurisdiction, (6) Status Quo in international or

foreign jurisdictions, (7) Proposals and Viability (8)

Recommendation and Conclusion.

II. The Concept of Ageism.

Ageism or age discrimination is a prevalent social problem

defined as the prejudiced behavior of individuals and systems within the culture against older adults, including the negative consequences of stereotyping of the elderly.3

Ageism along with racism and sexism is also a form of

discrimination, while the latter two bars the advancement of an

individual based on his/her gender and race; Ageism

circumscribes the prospects of an individual on account of

3 Hillier & Barrow, 2011, p. 12

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his/her age4. This type of discrimination can pervade at any age

group whether young or old, but for the purpose of this paper

the highlight would be the latter group.

The modern complexities of society render Ageism an

intricate issue, spawned and integrated as practice and custom

by varying historical, social, cultural, and psychological

influences.5

In the context of labor, the rapid advances in technology

and industry renders dexterity and erudition swiftly obsolete,

allegedly resulting to difficulty of keeping old workers abreast in

new developments in their respective fields.

The term Detroit syndrome is used to describe older people in terms

of obsolesce that exists for cars; within the workforce, older persons

have often been considered a surplus population. As such, they

suffer the potential for being managed like surplus commodities:

devalued and discounted.6

The quotidian practice of hiding ones age in trepidation of

being labeled as old or too old is an obvious sign of fear of aging,

it is a deplorable defense triggered by the subconscious against

discrimination or prejudice against ones age.

The modern ratiocination of competency in employment

and labor, more often than not, produces unequal or bias

4 Ibid. 5 Ibid. 6 Ibid.

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treatment among employees/workers with the scales tipping in

favor of their younger counterparts, the rationale is that new

and younger generations are more acclimatized to the advances

modern technology; hence more eligible.

In a nutshell, Ageism is the treatment of an individual as

second class or inferior just because of his/her age.

II-A. Ageism in Labor Discrimination of Older Workers.

Individuals aged 45 and older are generally referred to as

older workers. 7 When compared to younger generations in the

workplace, myths of older workers being unproductive and

snail-paced in adapting to new innovations in technology, like

new generation computers and their corresponding

applications, are prevalent.

Even before reaching the age8 in the quoted definition

many applicants already have difficulty in finding jobs.

This problem is much more severe for those who already

been categorized as older workers, especially in the Philippines

where there is no law regulating the caprice of employers in

prescribing age requirements as condition necessary for

employment.

7 Erber, 2011, p. 297 8 In some cases in the Philippines ages 35 to 40 begin to experience employment age discrimination.

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It must be emphasized that age should not be the

determining factor in finding work but the individuals dexterity

to perform the job; jaundiced generalization of older workers

permeates the field of labor.

The older laborer is thought to be an accident or illness

prone, inclined to have a slow reaction time, and posses

faulty judgment.9

Similar prejudicial presumptions greatly fuel job age

discrimination; on the contrary these biased presumptions have

been debunked by studies showing that older workers are at

par with their younger counterparts or even superior as one

study exhibited that.

x x x Older workers have superior attendance records; that they are

likely to be stable, loyal and motivated x x x10

II-B. In the Philippines.

The Philippines badly needs to enact a law prohibiting age

discrimination. Why? Because the same is rampant and is the

major cause of unemployment in older age groups and is

contrary to the mandate of the Constitution for equal

employment opportunities.

9 Hillier & Barrow, 2011, p. 209 10 Id., p.215

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It is not new for Filipino workers to find employment

abroad; this is especially true to the aging segment of the labor

force. Many of these workers in overseas have been longing to

return to their homeland and re-unite with their families but

could not do so, some choose to bring their families and start

life anew in foreign soil.

The fact that these people are left with such choice is that

there are no alternatives for them here if they come back.

Together with low salaries, the biggest obstacle standing,

is that returning workers may discover themselves ostracized,

and suddenly inept for the equivalent employment in the local

arena, even though it is evident that they have the desired

qualifications and experience suited for the job.

Employers are finding more ways to restrict jobs to

specified age groups by setting age qualifications. By setting

these age qualifications employers can take advantage of

younger workers by offering a lower pay rate and assuming that

younger individuals are willing and capable of working extended

shifts.

Today, many want ads are still stating a preferred age range of 20-

28 years old for entry-level positions and up to 44 years old for

managerial levels. With such a low age bracket to find work, many

employers are lowering the required retirement age to as low as 50.

It is becoming more difficult for those over the age of 50 to find work

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and with no laws to defend the elderly in the work force; many

Filipinos are resorting to finding work outside of the country.11

The towering toll of unemployment in the Philippines is

one of the factors that enable many employers to determine

requirements as to the age, height, gender, and even the

physical appearance of prospective applicants.

The following images show the faade of such

discrimination.

11 Age Limit and Job Discrimination in the Philippines. (2011, July 30). Retrieved August 20, 2014, from http://www.pinoy-ofw.com/news/14429-job-age-discrimination-work-philippines.html

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These examples above illustrate the bias of employers for

younger workers, try to peruse a newspaper and you can spot

three to five or even more hiring advertisements similar to these,

and since there is no law prohibiting such opportunity depriving

practice, employers can impose it with impunity.

The constitution guarantees equal opportunities for

workers, and publishing this kind of discriminatory

requirement should be frowned upon, in the first image, whats

the difference between a 35 and 50 year old store manager

besides age? In fact in terms of experience and credentials the

latter may even be superior.

There should be no reason to bar an applicant beyond 35

years old, this exercise of management prerogative is ridiculous

aside from being prejudicial to deserving older employees; and

should therefore be put to an end by enacting a law proscribing

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age discrimination in employment; penalizing employers

committing such discrimination including the publication of the

same in newspapers or any medium of advertisement.

Employment should be open to every individual that

possesses the skill qualifications, age should not be a

requirement for employment. Unless it can be shown in good

faith that the performance of a particular job is hazardous or

unsuitable to older persons.

III. Analysis

As to the reasons why age discrimination is prevalent in

the Philippines, it can be inferred that some employers are

trying to take advantage of unseasoned applicants who, for lack

of experience, do not have the place to demand higher

compensation; and unwitting of the benefits and privileges

granted by law.

In comparison, seasoned applicants have, in their hands,

a good bargaining chip their experience and skill which gives

them a good stance to demand and negotiate.

However, the fatal flaw of our labor statutes is that there

is no law enjoining employers from imposing arbitrary age

requirement, and many opportunistic employers freely exploit

this loophole and continue to press for age as one of their

primary requirements to accept an applicant; which in turn

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creates a barrier against older individuals of equal or even

superior quality in terms of experience and skill.

Corrupt practices (favoritism, politicking, etc.) plaguing

the office bureaucracy may also be the cause of barring qualified

employees, but are considered to be over-the-hill candidates

from obtaining a promotion, benefit, or privilege as against their

younger counterparts; or entry to the company in case of

prospective employees.

The thought of employing younger people who can afford

taxing hours of work also contributes to this discrimination.

Thus, in order to rectify this incorporated error in the

culture of Filipino employment a relevant law expressly treating

this issue must be passed.

IV. Effects of Age Discrimination in Employment

The effects of age discrimination are wide and far reaching;

because of it, many older Filipino workers have taken flight to

other countries to seek better fortunes and have endured being

alone and far from their families.

It also spawned undesirable practices like hiding ones age

by forging, or tampering official documents such as birth

certificates; age discrimination has also displaced older

employees on account of their age through forced early

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retirement or denial of benefits and privileges given to younger

employees of equal rank and value of work.

For those who do not have the capacity to go abroad, they

are left with nowhere to go.

Aside from the economic consequences of age

discrimination, its mental and emotional effects must be

considered such as low self-esteem, anxiety, unproductivity,

increased absenteeism, and lack of interest in responsibilities

as in the case of older employees being discriminated in their

workplace.

For an older applicant, continued rejection may lead to

feeling forlorn which may eventually lead to depression, and

worse death.

The foregoing statements can be summarized similarly

into what the Supreme Court of the Philippines enunciated in

one case.

Unemployment brings untold hardships and sorrows on those

dependent on the wage-earner. The misery and pain attendant on the loss

of jobs then could be avoided if there be acceptance of the view that under

all the circumstances, the workers should not be deprived of their means

of livelihood.12

12 Almira vs. B. F. Goodrich Philippines, Inc., G.R. No. L-34974, July 25, 1974, 58 SCRA 120.

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An offshoot effect of Filipino workers leaving for abroad is

that their children are left in the homeland without guidance

which in turn, may be in danger of being lost and end up

becoming another undue burden for the society to bear; it is a

total mockery of the declaration of the 1987 constitution:

The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. X X X X..

The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.13 [Emphasis Supplied]

V. The Status Quo in the Philippines

Though the issue has reached the halls of the congress, and with a bill already pending in senate, the likelihood of the passage of a law remains to be seen, below is a reproduction of an article written by Janvic Mateo in The Philippine Star.

MANILA, Philippines - Congress is being asked offline and online to pass a law banning age discrimination in workplaces.

Quezon City Councilor Lena Marie Juico has filed a resolution asking her colleagues in the city council to support a bill of Sen. Pia Cayetano seeking to penalize an employer, labor contractor or labor organization for discrimination against any person because of age.

Over 5,000 netizens are now backing the online petition just over a month after it was filed in platform Change.org.

13 Phil. Const. (1987), Art. II, Sec. 12

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The proposed Anti-Age Discrimination in Employment Act of 2013 is currently pending on second reading. Senators Miriam Defensor-Santiago and Jinggoy Estrada have also filed similar bills.

Juico said capable and able individuals are denied employment benefits, if not employment opportunities, as prejudice against an aging workforce is evident in the qualifications posted in job notices and advertisements.

No person should be discriminated against due to age, sex, creed, political inclination or status in life, she said. The basis for employment should be the skills and qualifications necessary to perform the occupation.

Cayetanos bill seeks to prohibit the publication of an employment notice specifying age preference; the requirement on an applicant to declare age and birth date; declining an employment application by reason of age; discrimination in terms of compensation, conditions or privileges because of age; and the forcible laying off, or even early retirement, of an employee because of age.

It also aims to ban labor contractors from refusing to refer for employment an individual because of age and for a labor group to deny membership or cause an employer to discriminate against a person because of his age.

Exceptions are cases where age is an occupational qualification reasonably necessary for the normal operation of a particular business, or where the intention of the employer is to observe the terms of a seniority system and employee retirement plan in his company.

The proposed fines for violators would range from P50, 000 to P500, 000

or imprisonment of up to two years.14

This is an interesting development since the bill proposed

by Senator Cayetano is similar to the provisions of ADEA in the

United States of America, which specifically tackles the issue it

is a major step towards the goal of enhancing equal employment

14 Mateo, J. (2014, June 11). Law vs age discrimination in employment sought. . Retrieved August 3, 2014, from http://www.philstar.com/headlines/2014/06/11/1333431/law-vs-age-discrimination-employment-sought

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opportunities, and finally put an end to age discrimination in

the Philippines.

However, reiterating the fact that the passage of this bill

remains to be seen, because it seems that the congress

currently have other priorities; as they have been silent with

regards to the progress of the bill; but then again, this issue

might eventually be side tracked and eventually be buried in the

pile of pending bills in the congress.

Hence the necessity of this bill needs to be asserted for the

sake of older workers who cannot find proper employment

because their age.

VI. Status Quo in Foreign Jurisdictions

In some jurisdictions, like the United States of America,

age discrimination in employment has been expressly

prohibited, particularly by Age Discrimination Act of 1967.

The prohibition extends from employment practices of

employers, labor organizations and to the publication of

advertisements as well as notices.

The federal Age Discrimination in Employment Act

(ADEA) prohibits age-based discrimination against older

workers through hiring, firing, layoffs, compensation and other

conditions of employment. The law covers most workers age 40

and older in firms with 20 or more employees.

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In the United Kingdom, where ageism was also rampant

until a similar law was implemented. The Equality act of 2010

supplanted the earlier Equality Act of 2006. It boosted equal

opportunities in employment by incorporating the four major

Equal Treatment Directives of the European Union, which also

included provisions against age discrimination.

In the international arena, the International Labor

Organization has included in its Four Fundamental Principles

and Rights at Work- the Elimination of Discrimination in

Respect to Employment and Occupation.

VII. Propositions and Viability

Considering the employment and economic situation of

the country, the enactment of the Anti-Age Discrimination Law

in Employment bill should be taken as priority by the congress

for when every individual returns home empty handed and

barren after a day of search for means of lawful survival. More

stomachs are growling hungrily and the day will come that these

jobless individuals -discriminated, because of their age may

possibly, if not take flight to overseas, become engaged in illegal

activities, and worse end their lives out of desperation.

In the light of the reasons and discussions in previous

sections of this paper, the author strongly supports and

proposes the prioritization of the enactment of the Anti-age

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Discrimination in Employment Act of 2013 currently lodged in

the Senate. To end once and for all age discrimination in labor.

Below is the full reproduction of the bill

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SIXTEENTH CONGRESS )

REPUBLIC OF THE PHILIPPINES )

First Regular Session )

SENATE

S. No. 29

EXPLANATORY NOTE

In these times of global economic recession, a number of our

countrymen have lost their jobs, and many employers have limited the

work hours of their employees and reduced their take home pay.

Unemployment rate has gone up, especially as fresh graduates continue

to join the labor force. As an ill-effect a new type of discrimination has

emerged, discrimination against an individual due to age. These displaced

workers face a bleak future, especially as most employers prefer young

employees prejudice against an aging workforce is evident in the

qualifications posted in job notices and differences in benefits received.

The Constitution mandates the State to promote equally of

employment opportunities for all. This means that an individual should

not be discriminated against due to his age, sex, and creed political

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inclination, or status in life, the basis for employment should be the skills

and qualifications necessary to perform the occupation.

This bill seeks to eliminate age discrimination in employment by

prohibiting and penalizing any employer, labor contractor, and labor

organization that will discriminate against any individual because of his

or her age.

In view of the foregoing, approval of this bill is earnestly requested.

S.G.D

SENATOR PIA S. CAYETANO

--------------------------------------------------------------------------------------------------------------------------------

AN ACT PROHIBITING THE DISCRIMMINATION ON THE EMPLOYMENT OF

ANY INDIVIDUAL ON THE BASIS MERELY OF AGE

Be it enacted by the Senate and House of Representatives of the

Philippines in

Congress assembled:

SECTION 1. Short Title. -The Act shall be known as the "Anti-Age Discrimination in Employment Act of 2013

SECTION 2. Declaration of Policies. The state shall promote equal opportunities in employment for everyone. To achieve this end it shall be

the policy of the State to:

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a.) Promote employment of Individuals on the basis of their

abilities and knowledge, skills and qualification rather

than their age.

b.) Prohibit arbitrary age limitations in employment.

c.) Assist both employers and employees in devising ways to

resolve problems that may take place as a direct or indirect

impact of age discrimination on employment.

SECTION 3. Recognition of Rights. Pursuant to the above-declared principles, the following rights of citizens are hereby acknowledge, and the

State guarantee their enjoyment to:

a.) The right to qualify for a position regardless of age, and on

the basis their merits and qualifications

b.) The right of older applicants or employees be treated

equally with the younger applicants or employees in terms

of hiring, compensation, promotions, and other

employment activities.

c.) The right of any individuals to access public records in the

exercise of his or her rights granted under this Act.

SECTION 4. Definition of Terms. The following terms shall have their respective meanings:

a.) Employee includes any individual employed by an

employer.

b.) Employer includes any person acting directly or

indirectly in the interest of an employer relating to an

employee and shall include Government and all its

branches, subdivisions, and instrumentalities, all

government owned or controlled corporations and

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institutions as well as non-profit private institutions or

organizations.

c.) Job Applicant includes any person who applies for a

specific and vacant position for which an employer is

seeking candidates, met the predefined documented

minimum requirements related to a specific open position,

applied for the position during the period that the applicant

flow log remained open, and who complied with the hiring

organizations formal recruitment practices.

d.) Labor Contractor means any person regularly

undertaking with or without compensation to procure

employees for an employer or to procure for employees

opportunities to work for an employer and includes an

agent of such person.

e.) Labor Organization means any union or association of

employees which exists in whole or in part for the purpose

of collective bargaining, or for dealing with employers

concerning terms and conditions of employment.

f.) Publisher includes any person or juridical entity engaged

in the printing of information on paper and its distribution,

buying or otherwise securing of airtime or space on

television, radio, internet and similar media, or other

similar methods.

SECTION 5. Employers Covered. The provisions of this Act shall apply to all employers, including national and local governments. It shall also

apply to labor contractors and labor organizations.

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SECTION 6. Individuals Covered. The provisions of this Act shall apply to all individuals whether employees or job applicants who may be subject

to discrimination in the workplace, or hiring process, due to age.

SECTION 7. Education and Research Programs. - The Department of Labor and Employment (DOLE) Shall:

a.) Conduct studies and researches, and come up with

corresponding guidelines aimed at 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.

SECTION 8. Prohibition of Age Discrimination.

a.) It shall be unlawful for an employer to

1.) Print or publish, or cause to be printed or published, in

any form of media including internet, any notice of

advertisement relating to employment suggesting

preferences, limitations, specifications, and discrimination

based on age;

2.) Require the declaration of age or birthdate during the

application process;

3.) Decline any employment application because of the

individuals age;

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4.) Discriminate against an individual in terms of

compensation, terms and conditions, or privileges of

employment on account of such individuals age;

5.) Deny any employees promotions or opportunities for

trainings on the basis of his/her age;

6.) Forcibly lay-off an employee merely because of old age

7.) Impose early retirement on the basis of such age and

8.) Reduce wage rate of any employee just to be able to comply

with this act.

b.) It shall be unlawful for a labor' contractor 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 group to

1.) Deny membership to any individual because of his/her

age.

2.) Exclude from its membership any individual because of

such Individuals age; and

3.) Cause or attempt to cause an employer to discriminate

against an individual in violation of this act.

d.) It shall be unlawful for a publisher to print or publish any notice

of advertisement relating to employment suggesting references,

limitations, specifications, and discrimination based on age.

SECTION 9. Exceptions. - It shall not be unlawful for an employer to set age limitations in employment if:

a.) Age is a bona fide occupational qualification reasonably

necessary in the normal operation of the particular business,

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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 this Act;

c.) The intent is to observe tile terms of a bona fide employee

retirement or a voluntary early retirement plan consistent

With tile purpose of this Act; Provided, that such retirement

or voluntary retirement plans are in accordance with the

Labor Code, as amended, and other related laws, and

d.) The action is duly certified by the Secretary of Labor and

Employment in accordance with the purpose of this Act

SECTION 10. Investigation and Enforcement. - The DOLE shall have the authority to investigate and require the keeping of records necessary for

the administration of this Act. It shall issue such rules, regulations, orders

and instructions as it deems necessary and appropriate to carry out its

responsibilities under this Act.

SECTION 11. Penalty. - Any violation of this Act shall be punished with a fine of not less than fifty thousand pesos (P50, 000.00) but not more than

five hundred thousand pesos (P500, 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 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.

SECTION 12. Separability Clause. - Should any provision herein be subsequently declared invalid or unconstitutional the same shall not affect

the validity or the legality of the other provisions not so declared.

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SECTION 13. Repealing Clause. - All laws, presidential decrees, executive orders rules and regulations, other issuances, and parts thereof, which

are inconsistent with the provisions of this Act, are hereby repealed and

modified accordingly.

SECTION 14. Effectivity. - This Act shall take effect fifteen (15) days after publication in the Official Gazette or in at least (2) newspapers of general

circulation.

Approved,

------------------------------------------------------------------------------------------

The foregoing bill closely resembles the ADEA or Age

Discrimination in Employment Act of 1967, a law in the United

States of America expressly prohibiting age discrimination.

As to the viability of the enactment of this bill, there is no

doubt that it can be achieved. Provided, that there is political

will to enact it, the only obstacle to this, is, as usual politicking,

lobbying, corruption, and retardation of the legislative process

due to factional inclinations of lawmakers and other political

theatrics common to the Philippine government.

Absent these reprehensive norms there is no reason that

the bill would not prosper as the intent of the law is not harsh

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nor unreasonable, but practical in the light of the prejudicial

circumstances surrounding the elderly in the workforce.

Aside from the usual political intrigues in the legislature

that slows down the passage of an important bill like this into a

law there are certain legal precepts that needs to be addressed

or clarified first such as constitutionality, and encroachment to management prerogative.

Constitutionality. It has already been repeated over and over again that the

necessity of the enactment of the anti-age discrimination bill

stems from the constitutional mandate that the State shall

afford full protection to labor, local and overseas, organized and

unorganized, and promote full employment and equality of

employment opportunities for all.15

In rhyme with the discussions in the earlier parts of the

paper this bill certainly does not conflict with the provisions of

the 1987 constitution. In fact, the enactment of the bill would

make the broad definition more precise and inclusive in its

protection of equality of employment opportunities and fulfill

the intentions of the framers of the constitution.

15 Phil. Const. (1987), Art. XIII, Sec. 3.

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Although not an age discrimination case, the decision

below by the Supreme Court of the Philippines outlined

principles in equality of opportunities. The court said:

Public policy abhors inequality and discrimination is beyond

contention.

Our Constitution and laws reflect the policy against these

evils. The Constitution[in the Article on Social Justice and Human

Rights exhorts Congress to "give highest priority to the enactment of

measures that protect and enhance the right of all people to human

dignity, reduce social, economic, and political inequalities."

The very broad Article 19 of the Civil Code requires every

person, "in the exercise of his rights and in the performance of his

duties, act with justice, give everyone his due, and observe honesty

and good faith."

International law, which springs from general principles of

law, likewise proscribes discrimination. General principles of law

include principles of equity, i.e., the general principles of fairness

and justice, based on the test of what is reasonable. The Universal

Declaration of Human Rights, the International Covenant on

Economic, Social, and Cultural Rights, the International Convention

on the Elimination of All Forms of Racial Discrimination, the

Convention against Discrimination in Education, the Convention

(No. 111) Concerning Discrimination in Respect of Employment and

Occupation.- all embody the general principle against

discrimination, the very antithesis of fairness and justice.

The Philippines, through its Constitution, has incorporated

this principle as part of its national laws.

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In the workplace, where the relations between capital and

labor are often skewed in favor of capital, inequality and

discrimination by the employer are all the more reprehensible.

The Constitution also directs the State to promote "equality of

employment opportunities for all.16

By analogy, the same principles necessitate the enactment

of an anti-age discrimination law to further promote equality of

opportunities in the labor and employment, as it is not only

mandated by the constitution but also by public policy, the

general principles of law, and international laws through

conventions.

A person who does not have any property has only his job

or employment as his livelihood, and an older employee or

applicant deprived of such livelihood is equivalent to deprivation

of property.

Management Prerogatives.

In relation to the preceding paragraph the question as to

Whether or not the implementation of this law invades the

prerogative of an employer to impose its own rules and

regulations including the qualifications of a particular job?

16 International School Alliance Of Educators (Isae) Vs. Quisumbing, G.R. No. 128845. June 1, 2000.

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The answer is negative, what is merely prevented by the

proposed law is the imposition of arbitrary qualifications based

on age of an individual it does not curtail the right of an

employer to set its own standards in accepting a prospective

employee.

In fact if one would refer to foreign jurisprudence, since

our jurisprudence do not have any primary authority dealing

with age discrimination, particularly a case decided by Unites

States Court of Appeals it is the initially plaintiff that carries the

burden to make a prima facie case of age discrimination.

The plaintiff initially has the burden to establish a prima facie

case of discrimination. A prima facie case creates a rebuttable

presumption of discrimination.

The burden then shifts to the defendant to provide a

legitimate, nondiscriminatory reason for the adverse employment If

the defendant provides such a reason, the presumption disappears,

and the burden shifts back to the plaintiff to show that the proffered

reason was pretext for age discrimination. At all times, the ultimate

burden of persuasion is on the plaintiff.

To satisfy the prima facie burden in an age discrimination

termination case, plaintiff must show he was: (1) a member of the

protected class; (2) qualified for his position; (3) terminated; and (4)

replaced by someone sufficiently younger to permit an inference of

age discrimination.17

17 RAMLET v. JOHNSON COMPANY No. 07-1089. November 16, 2007.

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While not binding, the above cited decision of the U.S.

Court of Appeals shows that enactment of anti-age

discrimination laws do not mean the destruction and

oppression of management.

Furthermore the 1987 constitution provides that:

The State shall regulate the relations between workers and

employers, recognizing the right of labor to its just share in the fruits

of production and the right of enterprises to reasonable returns to

investments, and to expansion and growth.18

The preceding provision explicitly states that both rights

of employees and employers are protected by the state hence

the enactment of an anti-age discrimination law does not

prejudice the employers nor its prerogative lay down rules and

qualifications so long as those are done in good faith. To

reiterate the object of the law is not cut down management

prerogatives but to protect older applicants and employees from

the wrongful and capricious exercise of such.

Therefore following the said justifications it can be soundly

concluded that the enactment of the anti-age discrimination bill

is both politically and legally viable. Provided that in the former

18 Phil. Const. (1987), Art. XIII, Sec. 3, Par. 3

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the legislature should focus their attention in what they are

supposed to do rather than dangle in useless issues.

VIII. Conclusion In the light of the preceding discussions it can be concluded

therefore that:

Ageism being rampant in the field of Labor and

Employment needs to be stamped out to provide equal

opportunities to older workers who are willing, able, and

qualified to the job.

The labor code and other labor laws are insufficient in

preventing age discriminatory practices.

The insufficiency of the law to stop age discrimination

gave employers the license to wantonly set qualifications

against older workers.

In addition to mass emigrations, and joblessness, ageism

spawns evil practices which primarily involve forgeries

and other forms of deception.

Age discrimination adversely affects the psyche of older

workers, which frequently results to desperation, and in severe

cases loss of life

The issue of unemployment in the Philippines particularly

to older persons can be attributed to multifarious reasons. But

it can be openly deduced that it is the lack of law protecting

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these older individuals from discrimination in employment by

mere reason of age that the rate of unemployment of older

individuals in the country continues to rise.

Age discrimination in employment had been existing in the

midst of the Philippine society for decades, though our present

charter prescribes equality of work opportunities, it is strange

to see that labor laws left the matter out and there had been no

motions from the legislature to cover the same until recently19,

in the same vein the Supreme Court is yet to rule or express its

opinion about age discrimination in employment.

In contrast, foreign jurisdictions like the United States as

an example, have dealt with the problem since 1967 by enacting

a law proscribing age discrimination in employment.

In the international perspective age discrimination is really

frowned upon by many conventions such

Philippines as a developing country, reliant on skilled and

experienced workers, should follow suit and deal with age

discrimination, it can be argued that young people have a lot of

potential, yes, but experienced workers is what the industry

needs and instead letting these older people go to abroad and

let foreign hands exploit their valuable experience. The state

19 The passage of the Anti-Age Discrimination Act of 2013 still remains to be seen as the legislature is currently embroiled in political controversies. The bill has not progressed since it passed the first reading.

33


should take upon itself to protect and nurture them in their own

homeland.

It has been already twenty seven years since our present

charter came into existence it is high time that a law, that will

completely give life its slumbering purpose of promoting

equality of opportunities of work, be enacted.

The laborers representatives should not sleep on the right

of their sector not to be discriminated by mere reason of age.

Therefore, to remedy the problems presented by age

discrimination the author recommends that the legislature

should pass the Anti-Age Discrimination Act currently pending

in the senate expeditiously

The idea of young workers being more capable than older

workers is an illusion that needs to be dispelled in the field of

labor; all individuals should be afforded an opportunity to be

employed regardless of age, so long as they are capable of

performing the job.

-END-

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Bibliography

Erber, J. T. (2011). Aging and Older Adulthood. Chichester: Wiley Blackwell.

Hillier, S. M., & Barrow, G. M. (2011). Aging, the Individual, and Society. Belmont, CA: Wadsworth Publishing Co.

OFW, P. (2011, July 30). Age Limit and Job Descrimination in The Philippines. Retrieved September 15, 2014, from PINOY-OFW.COM: http://www.pinoy-ofw.com/news/14429-job-age-discrimination-work-philippines.html

Pres. Decree No. 442 The Labor Code of The Philippines. Retrieved October 12, 2014, from http://www.dole.gov.ph/labor_codes.

Phil. Const. (1987). Retrieved October 12, 2014, The Official Gazette of The Philippines Online.

Jerald RAMLET. v. E.F. JOHNSON COMPANY. United States Court of Appeals,Eighth Circuit. No. 07-1089., November 16, 2007. Retrieved October 12, 2014 from http://caselaw.findlaw.com/us-8th-circuit/1144351.html.

Almira vs. B. F. Goodrich Philippines, Inc., G.R. No. L-34974, July 25, 1974, 58 SCRA 120.

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Documents

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