Description

Distinction based on age was and still seems to be common practice at workplace without the question arising whether the applied measures and practices are objectively justified. However, such ignorance no longer seems acceptable nowadays in view of the individual’s dignity as well as in view of economical issues. Fertility rates decrease and older workers leave employment too early. Current pension systems are not designed to finance the longevity of today’s retirees. It should be of special concern to eliminate any discrimination against older workers which deprives them of the possibility to work.

This study compares age discrimination legislation of Europe, Germany and the USA regarding access to employment, conditions of employment and termination of employment. It also integrates an economic and sociological viewpoint and offers a possible solution to better eradicate discrimination. This study addresses academics and professionals in the field of labour law and will also be of interest for employers.

Table of Contents

Preface

Abbreviations

Introduction

Part I Age discrimination: the problem

Chapter 1 Grasping the problem

1.1 What is an older worker?

1.2 Unemployment of older people

1.3 Reasons for high unemployment rates of older people

1.3.1 Economic reasons

1.3.2 Perceptions/stereotypes

Chapter 2 How to deal with age discrimination?

2.1 Distinction vs. discrimination

2.2 Necessity of legislation

Part II Dealing with age discrimination

Chapter 3 Europe – Directive 2000/78/EC

3.1 Scope

3.1.1 Personal scope

3.1.2 Material scope

3.2 Forms of discrimination

3.2.1 Direct discrimination

3.2.2 Indirect discrimination

3.3 Exemption/Justification

3.3.1 Age as a genuine occupational requirement

3.3.2 Positive action

3.3.3 Specific justification for age discrimination

3.4 Burden of proof

3.5 Sanctions

3.6 Heated debates surrounding the Mangold case

3.6.1 General principle of equal treatment in respect of age

3.6.2 No direct horizontal effect of the Framework Directive

3.7 Summary

Chapter 4 Germany – General Act on Equal Treatment

4.1 Scope

4.1.1 Personal scope

4.1.2 Material scope

4.2 Forms of discrimination

4.3 Exemption/Justification

4.3.1 Age as a genuine occupational requirement

4.3.2 Positive action

4.3.3 Specific justification for age discrimination

4.4 Other provisions

4.4.1 Employer’s obligation

4.4.2 Burden of proof

4.4.3 Sanctions

4.5 Summary

Chapter 5 United States – Age Discrimination in Employment Act 1967

5.1 Scope

5.1.1 Personal scope

5.1.2 Material scope

5.2 Forms of discrimination

5.3 Justification/defences

5.3.1 Bona Fide Occupational Qualification

5.3.2 Reasonable factors other than age

5.3.3 Bona fide seniority systems

5.3.4 Bona fide employee benefit plan

5.3.5 Positive action

5.4 Burden of proof

5.4.1 Disparate treatment

5.4.2 Disparate impact

5.5 Sanctions

5.5.1 Assertion of a violation

5.5.2 Compensation and damages

5.6 Waiver of rights

5.7 Summary

Part III Comparative approach: The EU, Germany and the United States

of America

Chapter 6 Access to employment

6.1 Recruitment procedure

6.1.1 Job advertisement

6.1.2 Job interview

6.2 Minimum recruiting age

6.3 Maximum recruiting age

Chapter 7 Conditions of employment

7.1 Salary related to age

7.2 Vocational training

7.3 Extension of holiday leave

Chapter 8 Termination of employment

8.1 Specific fixed-term contracts for older workers

8.2 Dismissal

8.2.1 Period of notice

8.2.2 Social criteria for redundancy

8.2.3 Compensation payments

8.3 Retirement ages

8.3.1 General mandatory retirement ages

8.3.2 Retirement ages for specific professions

Chapter 9 Summary

Chapter 10 Conclusions

Bibliography