Anti-age discrimination rules

The Department of Labor and Employment issued recently the implementing rules and regulations (IRR) of Republic Act No. 10911, otherwise known as the “Anti-Age Discrimination in Employment Act.”

The law aims to promote the employment of persons based on their skills and qualifications, not their age, and prohibits arbitrary age requirements in their employment, training and promotion.

The IRR enumerates the acts relating to age discrimination that are prone to be committed by employers, labor contractors and labor organizations before, during and after employment.

The following acts are prohibited at the employment application stage:

Print or publish in any form of media, including the internet, any notice of advertisement relating to employment suggesting preferences, limitations, specifications and discrimination based on age

Require the declaration of age or birth date during the application process

Decline any employment application because of the individual’s age.

Corollary to the rule on advertisements, the person or entity engaged in the publication of advertisements or distribution of airtime on TV, radio, the internet and other similar media shall also be held liable if he allows the publication, airing, broadcasting or release of age-discriminatory advertisements.

The IRR further states that, once employed, the employee’s age should not be used as a basis to discriminate against him with regard to the terms and conditions and privileges of his employment.

And neither should age be a factor in an employee’s promotion or opportunity for training, continued employment, or retirement from the service.

The idea is, an employee should be judged by his abilities and competence. The year he was born should not be material in determining his qualification for higher positions or the length of his employment.

Although the IRR imposes strict rules against using a person’s age against him in relation to his employment, it recognizes, though, that there are occasions when certain age requirements have to be set by an employer.

Thus, age limitations in employments will be permitted if:

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

The terms of a bona fide seniority system is not intended to evade the purpose of the IRR, or

The terms of a bona fide employee retirement or voluntary retirement plan are consistent with the purpose of the IRR, provided, that such plan is in accordance with the Labor Code and other related laws, or

The action is duly certified by the secretary of labor and employment after consultation with the stakeholders as in accordance with the purpose of the IRR.

These exceptions, in effect, acknowledge the fact that some jobs are age-sensitive, i.e., the employee’s chronological status plays a significant role in determining his ability to accomplish his work assignment, and that retirement plans are prepared based on actuarial studies that take into consideration the ages of its beneficiaries in designing the plan’s schedule of benefits and investment program.

It should be underscored, however, that these exclusions are not self-executory or stand-alone provisions. An employer who wants to invoke these qualifications is required to “submit a report prior to its implementation to the DOLE Regional Office which has jurisdiction over the workplace.”

With the submission of the report, the employer shall enjoy the presumption that the age limitation in force in his business is in accordance with the IRR, and the law, unless proven otherwise by the court.

So what will happen if the employer fails to submit that report? Failure to submit it shall give rise to the presumption that the employer is not allowed to set age limitations.

The preparation of this report is not rocket science. It’s something that the HR staff of businesses with age limitations in their employment structure can easily do. Omission could give rise to serious administrative and penal consequences.