a. Age (RA 10911, Secs. 4–6; DO 170, s. 2017)

Age Discrimination in Employment

Concept

Age discrimination in employment is addressed by the Labor Code’s prohibition against discrimination in the terms and conditions of employment on account of age, and by Republic Act No. 10911’s specific prohibitions covering recruitment, employment, and retirement. The latter also regulates the conduct of labor contractors, subcontractors, labor organizations, and publishers. (Art. 140, Labor Code)¹ (Sec. 4, Rep. Act No. 10911)² (Sec. 5, Rep. Act No. 10911)³

Governing provisions

Article 140 of the Labor Code protects persons against age-based discrimination by an employer in the terms and conditions of employment. Section 4 of Republic Act No. 10911 states that the Act applies to employers, labor contractors or subcontractors, if any, and labor organizations. Section 5 identifies prohibited acts; Section 6 identifies circumstances in which an employer may set age limitations in employment. (Art. 140, Labor Code)¹ (Sec. 4, Rep. Act No. 10911)² (Sec. 5, Rep. Act No. 10911)³ (Sec. 6, Rep. Act No. 10911)⁴

Requisites / Rules

• Recruitment: An employer may not publish an employment advertisement suggesting an age-based preference, limitation, specification, or discrimination; require an applicant to declare age or birth date during the application process; or decline an application because of the applicant’s age. (Sec. 5, Rep. Act No. 10911)³
• Employment and retirement: An employer may not discriminate on account of age in compensation, employment terms, conditions, or privileges; deny promotion or training because of age; forcibly lay off a worker because of old age; or impose early retirement on the basis of age. (Sec. 5, Rep. Act No. 10911)³
• Other actors: A labor contractor or subcontractor may not refuse an employment referral or otherwise discriminate because of age. A labor organization may not deny or exclude a person from membership because of age or cause, or attempt to cause, an employer to violate the Act. A publisher may not print or publish an employment advertisement suggesting age-based discrimination. (Sec. 5, Rep. Act No. 10911)³

Distinctions

Article 140 states a prohibition concerning an employer’s terms and conditions of employment. Republic Act No. 10911 expressly reaches earlier stages, including advertisements and applications, and separately identifies prohibited conduct by contractors or subcontractors, labor organizations, and publishers. (Art. 140, Labor Code)¹ (Sec. 5, Rep. Act No. 10911)³

Key doctrines

The statutory inquiry is not confined to whether a person was hired or retained. An age-based restriction may arise in an advertisement, an application requirement, access to training or promotion, or a retirement decision. Identify the actor and the particular act before assessing a claimed exception. (Sec. 5, Rep. Act No. 10911)³ (Sec. 6, Rep. Act No. 10911)⁴

Exceptions

An employer may set an age limitation where age is a bona fide occupational qualification reasonably necessary to normal business operations, or the differentiation rests on reasonable factors other than age. The Act also permits observance of a bona fide seniority system not intended to evade its purpose; a bona fide retirement or voluntary early retirement plan consistent with its purpose and applicable labor laws; or an action duly certified by the Secretary of Labor and Employment in accordance with the Act’s purpose. (Sec. 6, Rep. Act No. 10911)⁴

Bar tip

Classify the age-related act first, then test any asserted age limitation against the specific grounds in Section 6. Do not treat every age-based retirement measure as automatically permitted. (Sec. 5, Rep. Act No. 10911)³ (Sec. 6, Rep. Act No. 10911)⁴