Interrogating “Discrimination” on the Basis of Chronological Age

Interrogating “Discrimination” on the Basis of Chronological Age

Gerald L. Neuman^[*]

This essay addresses legal regulation of discrimination on the basis of chronological age, or “age discrimination” for short,^[1] from the perspective of human rights law as a complex system of positive law serving normative ends. It first describes some of the positive law of age discrimination, including differential treatment of older persons, differential treatment of young persons, and differential treatment of persons in between. It then deals with some factors relevant to evaluating claims that differential treatment on the basis of chronological age amounts to wrongful direct discrimination. Finally, it turns to the consideration of claims that differential effects according to chronological age amount to wrongful indirect discrimination. 

The essay does not attempt to analyze any of the hypothetical situations proposed for discussion at the workshop, in order to facilitate the contributions of the other participants.

I. Chronological age is a social construct that reflects physical and biological regularities as well as interactions with social structures. Human beings are born, grow and develop, and they eventually die, sometimes abruptly and often with a preceding decline. Individuals age differently, but ages correlate with certain statistically likely generalizations, either worldwide or within particular populations. While genetic engineering or technological hybridization may lead to different generalizations at some future date, for now we live in the present. 

Age discrimination law apparently originates in employment law, primarily for the protection of middle-age and older workers, before expanding unevenly in three dimensions: from employment to other fields of private and public action, from older workers to age in general, and from direct to indirect discrimination (roughly speaking, from intentional discrimination to actions with discriminatory effect). Some of these expansions have been incomplete, leaving sectors, ages, or types of discrimination uncovered, for good or bad reasons. Some of these expansions have been inadvertent or unconsidered.

Consistent with their origin, some “age discrimination” statutes, like the U.S. Age Discrimination in Employment Act, protect only individuals within a specified range of ages, such as those over forty years old. Other statutes, like those in many U.S. states, do not define a restricted range, but are interpreted as if they did.^[2] The statutes may also provide asymmetric protection for individuals, only against discrimination that favors persons younger than them, or (if the protected group is young) only against discrimination that favors persons older than them. Limitations of this kind presume a particular pattern of systematic discrimination, either within a sector or in society generally, and aim to prevent it, rather than aiming to prevent “age discrimination” in the abstract. Instead, an age-discrimination norm may be written generally and interpreted literally. Or it may not mention age at all, but may be written broadly – for example, by referring to “status” discrimination^[3] – and interpreted as including age without limitation.

Some differential treatment by age may be required by human rights law. The Convention on the Rights of the Child (CRC) has some distinctions based on chronological age built into its text, and the Committee on the Rights of the Child, the treaty body that monitors compliance has adopted others by interpretation. For example, the Convention’s definition of “child” refers presumptively to the chronological age of eighteen years (article 1), and refers both to age and maturity as criteria for the increasing weight that should be given to a child’s views (article 12). CRC article 32 requires states to adopt “a minimum age or minimum ages” for employment, which the CRC Committee aligns with the International Labour Organization’s standard of fifteen years generally for nonhazardous work, and thirteen years for light work.^[4] CRC article 40 calls for a minimum age of criminal responsibility; the CRC Committee currently urges fourteen years or higher.^[5] The CRC Committee also promotes a minimum age of legal consent to sexual activity,^[6] and insists on an absolute and exceptionless minimum age of eighteen for marriage, although marriage is protected as a human right for adults.^[7] The Committee also favors a minimum age of eighteen for purchase and consumption of alcohol and tobacco.^[8] Thus, the CRC regime does not consistently rely on individualized determinations of a child’s maturity, but sometimes encourages the use of minimum chronological ages as a mechanism to protect children by limiting their options.

In international and national law, prohibited discrimination is often distinguished from permissible differential treatment by means of a standard of justification. In U.S. constitutional law, the Supreme Court evaluates age discrimination of all kinds under a highly deferential standard of arbitrariness, known as rational basis review. The court considered that “the aged” had not been subjected to a history of discrimination comparable to groups that needed stronger judicial protection, and that “old age … marks a stage that each of us will reach if we live out our normal span.”^[9] U.S. statutory prohibitions of age discrimination apply more substantial standards, but their scope of application is more selective, regulating particular sectors of activity, often protecting specific age categories and accompanied by explicit exceptions. The European Court of Human Rights considers that “age,” in general, may amount to an “other status” on which discrimination is prohibited, but that justifying differential treatment need not require reasons as weighty as for ethnic origin, gender, or sexual orientation;^[10] under the margin of appreciation doctrine, the closeness of review can also vary depending on the subject matter involved and the degree of consensus among European states on the policy at issue. 

At the global level, the treatment of age discrimination by the Human Rights Committee (which monitors compliance with the Covenant on Civil and Political Rights) is opaque and unelaborated, aside from the general phrasing that differential treatment must be based on “reasonable and objective criteria,”^[11] which presumably includes some form of proportionality. Nonetheless, the Human Rights Committee has insisted in its concluding observations on state reports that states should adopt “comprehensive anti-discrimination legislation that prohibits all forms of direct, indirect and multiple discrimination, based on all prohibited grounds of discrimination, including age. . . in all public and private spheres.”^[12] 

II. For purposes of discrimination law, chronological age has certain unusual characteristics. One’s age is not subject to one’s control, but changes continually as long as one lives, so that people pass from one age group into another by the mere passage of time, in one direction only.

Measuring age by whole numbers of years breaks this continuous process into conventional segments familiar in most cultures. This practical approximation should not be considered problematic per se. Fred Schauer’s analysis of line-drawing on the basis of age cogently refutes the idea that a chronological age limit is arbitrary — in the sense of being irrational – merely because situations slightly above and slightly below the limit are assigned different outcomes that would not be empirically justified by direct comparison of the two situations in isolation from the broader scheme of regulation.^[13] If accurate statistical generalizations support the relationship between age and performance on a larger scale, then the justification of an age limit depends on a comparison with other regulatory options, in which the factors may include the cost, accuracy and intrusiveness of individualized assessments, and the need for informing third parties. From a human rights perspective, the framework for evaluating these comparisons may be different than that of a cost/benefit analysis, but these factors remain relevant. 

Judicial suggestions that age discrimination is different from race or sex discrimination because people’s ages continually change would appear to have some merit. First, policymakers have been young, and can foresee being older, and so may be better able to identify with individuals of other ages than with individuals of a difference race or sex. This is a contingent proposition, which may not apply in some societies or in some historical periods. Second, a person who is burdened by a rule at one age may benefit from the rule at another age. 

The academic literature on age discrimination highlights a contrast between two approaches to measuring equality: one that compares the situation at the particular moment of individuals of different ages, and one that compares individual lives taken over their whole duration.^[14] Under the “complete lives” approach, contemporaneous differences may not indicate injustice because the disadvantage to a person at one age may be compensated by the advantage to the same person at another age, and sometimes the temporary disadvantage is the cause of the (later or earlier) advantage. The implications of the complete lives perspective for the evaluation of alleged discrimination are debated.

From a human rights perspective, the insight of the complete lives perspective should not be overstated. The complete lives approach bears some analogy to utilitarian analysis, in that it aggregates advantages and disadvantages over the course of a person’s life, and may neglect intense disadvantage at one stage in light of advantages at others. Nonetheless, the insight may have value in combination with other human rights perspectives.

In particular, I would suggest that human rights law should not view isolated instances of disadvantageous treatment based on chronological age, affecting age ranges that do not suffer systematic disadvantage, as necessitating substantial legal protection. They do not require the same level of justification as differential treatment of age groups that do suffer systematic disadvantage. Laws that apply a uniform prohibition of discrimination at all ages may be acceptable as a useful approximation to the more appropriate norm or as a means of ensuring public support for the policy. But human rights reasoning should not require such uniformity. Undifferentiated laws should also leave room for affirmative action (or “special measures”) for more disadvantaged groups.

III. Additional questions arise concerning the extension of indirect discrimination analysis to chronological age. In various portions of the age spectrum, many policy-relevant characteristics correlate with chronological age. Some of these correlations have physiological bases. Others reflect longevity – within appropriate age ranges, chronological age often correlates with experience and cumulative accomplishment, and also with cumulative records of misconduct, because the passage of time increases the opportunity for their accrual. If antidiscrimination norms restrict use of chronological age as a proxy for such characteristics, should these characteristics also be challenged as permissible criteria because they correlate with chronological age? 

Although theorists disagree about why – or whether – indirect discrimination on various grounds is morally wrong, I will assume here that the arguments for regulating indirect discrimination are most persuasive when the category of persons affected is subject to widespread disadvantage in the particular society. Human rights law should not require states to eliminate every practice that has “disproportionate” effect on any conceivable social grouping. Even more than for direct discrimination, application of indirect discrimination norms to effects on every age range appears excessive.

To the extent that indirect discrimination on the basis of chronological age is adjudged in terms of proportionality, the outcome would depend on factors including the “weight” attributed to the age-related disadvantage and the normative importance of avoiding it. If there is a category of “older persons” who suffer systematic discrimination, then that discrimination may be likely to continue for the rest of their lives. Age-related disadvantages for other age groups may be temporary. Some of these may be mild, and may be compensated by later advantage. Yet other disadvantages correlated with age may be isolated exceptions to a generally favorable situation. These variations suggest that a uniformly restrictive standard of justification for indirect discrimination with regard to all age ranges may not be appropriate. And if practical considerations make a simple, uniform standard necessary for all instances of indirect discrimination, more questions arise about what it should be. These observations are general, but I hope that discussion at the workshop from more specialized perspectives will shed further light on them.

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[*] Gerald L. Neuman; J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, Harvard Law School; Director of HLS Human Rights Program; formerly member of [UN] Human Rights Committee (2011-2014).

[1] In this essay, I will consider as “age discrimination” actions or policies that unjustifiably favor or disfavor persons of any age, or persons within a restricted range of ages (x>A, x<B, or C<x<D), in comparison with people substantially younger than them, in comparison with people substantially older than them, or in comparison with both.  I will not consider other conceivable forms of “age discrimination,” such as discrimination against people born in odd-numbered years, or people born in a disfavored zodiacal year, or relative age effects within a cohort.

[2] For U.S. states, this may be justified as interpretation in light of the federal law.

[3] See International Covenant on Civil and Political Rights, Dec. 16, 1966, TIAS 92-908, 999 U.N.T.S. 171; International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3; European Convention on Human Rights, Nov. 4, 1950, ETS 5; African Charter on Human and Peoples’ Rights, Jun. 27, 1981, 21 I.L.M. 58; Cf. American Convention on Human Rights, Nov. 22, 1969, 36 O.A.S.T.S. (“social condition”).

[4] See U.N. Committee on the Rights of the Child (CRC), General Comment No. 20 (2016) on the implementation of the rights of the child during adolescence, CRC/C/GC/20 ¶ 84 (Dec. 6, 2016), https://www.ohchr.org/en/documents/general-comments-and-recommendations/general-comment-no-20-2016-implementation-rights [https://perma.cc/2HW6-SZ4W]; International Labour Organization (ILO), Minimum Age Convention, C138 (June 26, 1973).

[5] See U.N. Committee on the Rights of the Child (CRC), General Comment No. 20 (2016) on the implementation of the rights of the child during adolescence, CRC/C/GC/20 ¶ 84 (Dec. 6, 2016), https://www.ohchr.org/en/documents/general-comments-and-recommendations/general-comment-no-20-2016-implementation-rights [https://perma.cc/2HW6-SZ4W]; International Labour Organization (ILO), Minimum Age Convention, C138 (June 26, 1973).

[6] See e.g., U.N. Committee on the Rights of the Child (CRC), General Comment No. 20, ¶ 40; Committee on the Rights of the Child (CRC), Concluding observations on Iran, ¶ 58, UN Doc. CRC/C/IRN/CO/3-4, (Mar. 14, 2016) (recommending increase to 16 years).

[7] See U.N. Committee on the Elimination of Discrimination against Women (CEDAW) & Convention on the Rights of the Child (CRC), Joint general recommendation No. 31 (CEDAW) / general comment No. 18 (CRC) on harmful practices, CEDAW/C/GC/31/Rev.1 – CRC/C/GC/18/Rev.1 ¶ 20 (May 8, 2019) (revising a prior joint general comment from 2014, to eliminate the option for judicial approval of a mature adolescent’s decision to marry).

[8] See CRC, General Comment No. 20, ¶ 40.

[9] Massachusetts Retirement Board v. Murgia, 427 U.S. 305 (1976) (upholding mandatory retirement age for state police officers).

[10] See Šalinyté v. Lithuania, Judgment, App. No. 32934/19, (Oct. 26, 2021), https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22002-13454%22]} [https://perma.cc/T6HM-ZR7D]; P.C. v. Ireland, App. No. 26922/19 (Sept. 1, 2022), https://hudoc.echr.coe.int/fre#{%22tabview%22:[%22document%22],%22itemid%22:[%22001-218941%22]} [https://perma.cc/H5BX-6TB5].

[11] See Love v. Australia, Views, Comm. No. 983/2001 (2003); Canessa Albareda and ors v. Uruguay, Views, Comms. No. 1637/2007 et al. (2011).

[12] E.g., U.N. Human Rights Committee (UNHRC), Concluding observations on the fourth periodic report of Hong Kong, China, UN Doc. CCPR/C/CHN-HKG/CO/4, ¶ 9 (July 27, 2022).

[13] Frederick F. Schauer, Profiles, Probabilities and Stereotypes 115-7 (1st ed. 2003).

[14] See Juliana Uhuru Bidadanure, Justice Across Ages: Treating Young and Old as Equals, ch. 1 (2021).