ROUGH TRADE

Employers are wrong on anti-age discrimination law

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Ben D. Kritz

Ben D. Kritz

ONE of the most shocking discoveries about the Philippines I made when I first came here nearly a dozen years ago was that it is apparently perfectly legal and socially acceptable to practice a level of employment discrimination not seen in the developed world since the early years of last century. Fortunately, that is about to change.

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The Employers Confederation of the Philippines (ECOP), however, has decided it is having a hard time catching up to the modern world, and registered its objections to the new “Anti-Age Discrimination in Employment Act” (RA 10911) in a position paper as part of the stakeholder consultations preceding the formulation of the law’s implementing rules and regulations.

The new law specifically prohibits arbitrary age limitations in all phases of employment, whether in hiring, promotion, training, or retirement. Under the law, employers who engage in such practices are subject to penal sanctions of fines and imprisonment. In addition, the new law also stipulates that it is unlawful for a publisher “to print or publish any notice of advertisement relating to employment suggesting preferences, limitations, specifications and discrimination based on age,” and subjects erring publishers to similar penalties.

The objection of ECOP to the new law has a general and a specific basis. In its position paper, the group emphasized that, “Jurisprudence has reiterated time and again that the exercise by the employer of management prerogative is not subject to interference so long as it is done in good faith based on the exigencies of business and not intended to circumvent the legal rights of labor,” and cited case law reserving the rights of employers to independence in pursuit of a reasonable return on capital, within the boundaries set by the Constitution—a set of rights collectively described as “management prerogative.”

That’s the general objection. The more specific objection is the provision for criminal penalties in the law. ECOP wrote, “The imposition of penal sanctions for violation of prohibitions is oppressive and violative of the constitutional rights of employers.”

Breaking these two arguments down from the legalese into simpler language, what ECOP is apparently saying
is this: First, the practice of employment discrimination is by default a management prerogative, since the “exigencies of business” are something for the business itself to define, and under our system of jurisprudence, “good faith” and “upholding the legal rights of labor” must be presumed until proven otherwise. Second, ECOP is arguing that the penalties for doing what the law prohibits are too harsh, implying that similar violations of other laws that apply to employers are of much lesser severity.

ECOP is dead wrong on both counts, and it could probably save a lot of time, money, and embarrassment if it would face reality and drag itself out of the Stone Age.

To begin with, there are no universally recognized “exigencies of business” that apply to age, except for the very general ones, which are recognized by law, that persons who are very young or very old ought not be obliged to work. For the vast population in between (persons between the ages of 15 and 70), there is no broad presumption that age is a qualification for any sort of work; it may be, for specific kinds of work, but in those instances, because the presumption is that age is not relevant, it is up to the employer to prove that it is.

Likewise, ECOP’s complaint that the penalties are too harsh does not have a rational basis, but is a matter of opinion. The penalties for the violation of a law—whether it prohibits one for engaging in a particular act, or compels one to do so—are a matter of legislative judgment, which is ultimately the judgment of the people represented by the legislators, the people who, not incidentally, make up the vast pool of human resources that allow the ECOP members to pursue their reasonable returns. If the penalties do indeed violate a provision of the Constitution, a remedy can be sought at the Supreme Court, but ECOP cited no such provision beyond a general reference to employers’ “constitutional rights.”

Age is just one aspect of the appalling practice of employment discrimination in this country. Employers ought to be made to explain, in rational terms, why the job duties of a cashier in a grocery store necessarily require one to be an unmarried female of at least five feet, four inches in height and of pleasing appearance. But acting to do away with age discrimination is a good start, particularly when the only possible result—apart from the increase in complaints against employers who, after all, still refuse to get the message—is expanded employment opportunities in the Philippines.

ben.kritz@manilatimes.net

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