-
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).
1
-
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
2
-
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
3
-
4 Enactment of Anti-Age Discrimination Law in The
Philippines
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.
4
-
5 Vladimir Jophil S. Linawan BSLM-4A
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
5
-
6 Enactment of Anti-Age Discrimination Law in The
Philippines
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.
6
-
7 Vladimir Jophil S. Linawan BSLM-4A
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.
7
-
8 Enactment of Anti-Age Discrimination Law in The
Philippines
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
8
-
9 Vladimir Jophil S. Linawan BSLM-4A
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
9
-
10 Enactment of Anti-Age Discrimination Law in The
Philippines
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
10
-
11 Vladimir Jophil S. Linawan BSLM-4A
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
11
-
12 Enactment of Anti-Age Discrimination Law in The
Philippines
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
12
-
13 Vladimir Jophil S. Linawan BSLM-4A
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
13
-
14 Enactment of Anti-Age Discrimination Law in The
Philippines
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.
14
-
15 Vladimir Jophil S. Linawan BSLM-4A
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
15
-
16 Enactment of Anti-Age Discrimination Law in The
Philippines
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
16
-
17 Vladimir Jophil S. Linawan BSLM-4A
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.
17
-
18 Enactment of Anti-Age Discrimination Law in The
Philippines
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
18
-
19 Vladimir Jophil S. Linawan BSLM-4A
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
-----------------------------------------------------------------------------
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
19
-
20 Enactment of Anti-Age Discrimination Law in The
Philippines
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:
20
-
21 Vladimir Jophil S. Linawan BSLM-4A
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
21
-
22 Enactment of Anti-Age Discrimination Law in The
Philippines
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.
22
-
23 Vladimir Jophil S. Linawan BSLM-4A
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;
23
-
24 Enactment of Anti-Age Discrimination Law in The
Philippines
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,
24
-
25 Vladimir Jophil S. Linawan BSLM-4A
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.
25
-
26 Enactment of Anti-Age Discrimination Law in The
Philippines
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
26
-
27 Vladimir Jophil S. Linawan BSLM-4A
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.
27
-
28 Enactment of Anti-Age Discrimination Law in The
Philippines
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.
28
-
29 Vladimir Jophil S. Linawan BSLM-4A
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.
29
-
30 Enactment of Anti-Age Discrimination Law in The
Philippines
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.
30
-
31 Vladimir Jophil S. Linawan BSLM-4A
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
31
-
32 Enactment of Anti-Age Discrimination Law in The
Philippines
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
32
-
33 Vladimir Jophil S. Linawan BSLM-4A
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
-
34 Enactment of Anti-Age Discrimination Law in The
Philippines
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-
34
-
35 Vladimir Jophil S. Linawan BSLM-4A
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.
35