The ambivalent treatment of age discrimination: A sign of balance or resistance?
Résumé
The enforcement of the European Union legal framework on age discrimination in employment by the Court of Justice of the European Union illustrates a subtle tension between maintaining a certain deference towards Member State policies that wish to safeguard a presumed intergenerational equity in employment and making sure these policies are not a pretext for age discrimination – including through stereotypical views of age, or the misuse of proxies for age (experience, physical fitness, retirement age). The result is that there is no clear-cut set of principles to guide the elimination of age discrimination, despite the common difficulties of older and younger workers in the labour market and contrasting causes and effects of discrimination plaguing different generations. The question is whether the absence of a coherent legal framework on age discrimination generates instability and hinders proper enforcement of equality law, or translates a necessary structural balance inherent to the nature of age discrimination. To answer this query, the chapter first covers the variegated ways in which age is used as a ground for differentiation, which can be difficult to align with a uniform principle of anti-discrimination based on age. Then the analysis demonstrates that the judicial interpretation of age discrimination reflects these difficulties, through a narrow application of the concept of indirect discrimination and an ambivalent scrutiny of certain exceptions to age discrimination.