Student Discounts and other preferential treatment on grounds of age: untangling scope, legitimate objectives, and proportionate responses

Student Discounts and other preferential treatment on grounds of age: untangling scope, legitimate objectives, and proportionate responses

Dr. Elaine Dewhurst[*]

Introduction

Providing student discounts or other forms of preferential treatment which essentially amount to free access, reduced tariffs, or preferential access to certain groups based on age has become a social norm from which it is difficult to imagine any particular moral or even legal outrage emerging. Indeed, it is often the case that ‘age’ as a ground of discrimination has been treated differently (that is, more leniently) for many years due to a combination of factors arising from a lack of perceived political and historic disadvantage, immutability, legal certainty, and a general understanding that such treatments are, in the round, socially acceptable. Yet when preferential treatments are examined more closely, it becomes possible to identify potentially direct or indirect discrimination arising and arguments about legitimate objectives and proportionality ensuing.

This then opens up a variety of questions regarding the scope of existing discrimination laws (both personal and material), the extent to which such differential treatment could be justified and considered proportionate, and what factors should influence an international court and tribunal when such cases end up before them. As preferential treatment necessarily entails a beneficiary, the task of establishing who these beneficiaries should be arises. In the context of age, this requires the setting of age limits or groupings which benefit a certain group of persons. Additionally, the questions of whether public or private bodies should be responsible in the case of potential discrimination, and in what fields of activity protection against discrimination should arise, need to be addressed. Another natural consequence is that the preferential treatment is, with respect to other age groupings, potentially disadvantageous. At this point, it then becomes necessary to consider the legitimacy of the objectives sought to be achieved and whether the measure is proportionate to meet these objectives. Where these cases stray outside the national boundaries, the question then arises as to how international courts and tribunals should assess these challenging issues. The European Union (EU) protections will be used as a case study throughout to examine how these issues could or should be dealt with in practice, with the European Court of Human Rights (ECtHR) providing an interesting example of how international courts or tribunals currently deal with such issues.

This paper addresses three main issues. Part I of the paper focuses on the scope of protection of existing EU law, both personal and material. With respect to personal scope, the paper looks at age limits/groupings and the public/private debate with respect to the level of protection to be afforded. With respect to material scope, existing protected fields of activity are analyzed, and proposed extensions are discussed. Part II of the paper focuses on legitimate objectives and proportionality. Naturally, any assessment of where differential treatment might cross the line into discrimination will involve an assessment of the legitimacy and proportionality of any measures imposed. Drawing on EU case law, this section of the paper examines which objectives may have been considered legitimate and what factors might be relevant in determining proportionality in the context of preferential treatment. Finally, Part III of the paper moves to the international realm and, using the case law of the ECtHR as a case study, provides some insight into how such decisions are made. This should provide a useful basis upon which to examine how decisions should or could be assessed in international fora. Particular attention is focused on the use of comparative interpretation and the use of the margin of appreciation doctrine.

This short paper concludes that preferential treatment is invariably considered a social norm at the present time, but there are movements, certainly at an EU level, to subject these to more scrutiny in their construction and application. This will also have a consequential impact on the determinations of international courts and tribunals in these matters.

Part I: Scope of protection

In examining whether such cases fall within the scope of protection of existing anti-discrimination laws, both personal and material scope must be examined. With respect to personal scope, two primary issues arise (a) the choice of age limit or age group who will become the beneficiaries of the treatment, and (b) whether both public and private individuals and entities should be responsible for any potential discrimination claims. With respect to material scope, the main consideration is the fields of activity in which preferential treatment might fall foul of anti-discrimination law.

1. Personal scope

While anti-discrimination laws in the EU context apply to all ages (and there are therefore no limits on the protection from age discrimination), the question then arises as to whether the selection of age limits or groupings for the purposes of preferential treatment might fall foul of age discrimination protections. This is something which might also be considered as part of the proportionality assessment but is dealt with here to indicate the relationship to the personal scope of anti-discrimination laws and the impact of their breadth. In the EU context, this ‘collective approach’[1] to non-discrimination would be considered as an exception to the non-discrimination rules and should therefore be strictly defined according to sound principles. The EU Fundamental Rights Agency identifies preferential treatment as “a short-term and exceptional means of challenging prejudices against individuals who would normally suffer discrimination, by favouring members of a disadvantaged group.”[2] This then indicates that in determining the potential appropriateness of an age grouping or limit, certain factors should be considered, namely:

• The temporal nature of the measure: this would require a consideration of whether the measure is short-term in nature or has a more longer-term impact, a review mechanism to allow for re-consideration of the age limits/groupings over time, and a clear avoidance of a reliance on social norms.
• The exceptional nature of the measure: this overlaps to an extent with the temporal considerations and would require a review mechanism to be in place to determine the exceptional nature of the measure to achieve a particular purpose.
• The justification of the measure: the treatment should favour a disadvantaged group. This should be an essential part of the assessment of an age grouping. In the case of a student discount, for example, students could arguably be a disadvantaged group because they are often perceived to be poorer due to their commitment to education and their lack of economic activity. Older persons, who may not be economically active, or having reached certain age profiles, e.g., over stage pension age, may also be considered to be a disadvantaged group. This would, however, call into question whether setting an age limit of, for example, eighteen to twenty-four would be justifiable given that students may also be in older age categories.

Another important aspect of personal scope is the extent to which both public and private entities may be liable for anti-discrimination claims. In this respect, EU law is fairly clear, albeit materially limited in scope (this will be discussed further below). The right to protection against age discrimination in the EU context personally extends to “all persons, as regards both the public and private sectors, including public bodies.”[3] Additionally, the European Court of Justice has held that the protection against age discrimination is a general principle of EU law [4] bolstered by the EU Charter of Fundamental Rights, Article 21. This is sufficient in itself to confer on individuals a right which they may rely on in disputes between them in a field covered by EU law.[5] It is conclusive then that in EU law private entities may be the subjects of a non-discrimination claim. This ensures that within the scope of EU law (personal and material) there are no gaps in protection. This right to non-discrimination takes precedence over any conflicting national law and may even create a positive duty on the state to ensure equal rights. The European Convention on Human Rights (ECHR) also provides protection against non-discrimination,[6] but claims can only be made against States and only in respect of a breach for which the State is in some way responsible. However, as the State may be liable for the acts of the legislature, executive, judiciary, or other public authorities, a failure to effectively deal with a particular non-discrimination issue between private parties (either a negative or positive obligation violation) may find its way to the European Court of Human Rights. A number of rationales have been put forward to support this expansion of responsibility from public entities to private entities. These include:

• essentialism (the fact that the right or value is so essential and fundamental to the EU legal order that they must be protected);[7]
• integrationalism and functionalism (the fact that the protection of these rights is central to ensuring integration, and additionally ensuring the proper functioning of the EU legal order);
• practical (considering the very obvious shift in power from the public to the private sector in recent years, “the need for an adequate and different protection of fundamental rights has changed too.”[8]).

Naturally, there are some negatives associated with expansion of the application of law in this horizontal manner including lack of legal certainty and potential conflicts of freedom of contract, but these appear to be generally outweighed in the case of anti-discrimination law, at least.

1. Material Scope

 

As mentioned previously, EU law has a very limited material scope of protection in the age discrimination context. The fields of activity which are protected by EU law are limited to the employment context which includes self-employment.[9] The issue is slightly more complicated than at first sight, however. This is due to the wider scope of protection available under national laws within the EU[10] and under the ECHR. The EU currently has proposals under way for the extension of anti-discrimination protections on grounds of age to other fields of activity outside of the employment context including healthcare, social protection, education, housing, and access to, and provision of, goods and services.[11] The rationale for expansion of the fields of activity arises from central EU law concerns related to uniformity and integration but also includes more general concerns relating to the need to combat discrimination which can have detrimental impacts on individuals but also on economic efficiency (ensuring healthy competition within the EU internal market). However, the proposal has been met with concerns from Member States relating to legal certainty and contractual freedom particularly in the financial and insurance sectors.

 

Part II: Legitimate objectives and proportionality

 

In any differential treatment determination, the assessment of legitimate justifications/objectives and proportionality will emerge. One of the first tasks in any such assessment is to identify what may constitute a legitimate objective/aim for differential treatment. At an EU level, the type of justifications which have been accepted as legitimate within the employment field are generally broadly defined. Member States have been given a wide discretion to determine such aims/objectives as long as the aim falls within some political, social, economic, demographic, or budgetary consideration.[12] Outside of the employment context, the EU has indicated in its most recent proposals that preferential treatment on the grounds of age may be permitted if it promotes economic, cultural, or social integration. So, what might fall within these broadly defined grounds? An assessment of the case law of the Court of Justice of the EU (CJEU) in the employment context indicates a very broad scope including the measures which encourage the recruitment and promotion of older workers, improve personnel management, prevent disputes, and protect the dignity of workers, and measures which ensure the continuance of high-quality services. They have been keen to impress upon Member States that there is a distinction between public and private interests and that only the former is sufficient to justify a difference in treatment based on age. Although in practice this has often been difficult to discern because what might be needed in a business setting can often be framed as a public policy. Outside of the employment field, the possibilities of what promotes cultural, social, and economic integration are potentially open-ended.

 

As a result of this wide interpretation, proportionality assessments have become the space in which more scrutiny can be placed on potential justifications. Proportionality assessments in the EU center on determinations of appropriateness and necessity (which can often overlap or intertwine) and include assessments also of arbitrariness and alternative or more suitable means of achieving similar aims. Manifest unsuitability would render a measure disproportionate. As discussed above, it is in this context that the age groupings/limits might come into question as to their appropriateness and necessity to achieve certain objectives. Other factors to be considered might be the characteristics of the economic, social, or cultural sector involved, the availability of other options which could achieve similar objectives, and the impact of the measure on the rights of others.

 

Part III: International adjudication

 

If a preferential treatment case found its way to an international forum, one important question which might arise is whether there are any additional considerations, apart from the ones discussed at a national or regional level and articulated above, which might be relevant to their determination. The practice of the ECtHR is instructive in this regard as they have developed some useful interpretative and determinative tools to assist them in this process. One such interpretative tool is the use of comparative interpretation which tends to avoid suggestions of law-making or judicial activism. Jacobs, White, and Overy have defined this concept as the “resort to the search for a common European standard,”[13] and decisions can be made based on common constitutional or national law traditions. Where common standards are found, the Court is more likely to decide in this direction. Where there is a wide diversity of opinion, the Court tends to take a more conservative approach with the case being resolved in favor of the State rather than the individual.[14] This could have a particular impact in the context of preferential treatment which may be a social norm and therefore may struggle to pass this comparative test.

 

The ECtHR may also rely on their margin of appreciation, a concept which essentially amounts to a level of deference given by the court to the judgment of national authorities in view of the international nature of the ECHR. The scope of the margin of appreciation tends to alter depending on an assessment of certain factors including (a) the circumstances and background of the case and (b) the subject matter of the case (particularly which human right is being affected). In the age context to date, certain statements have been made which may indicate how such a margin might be applied in the case of preferential treatments. The ECtHR has indicated that age is not considered to be a ‘suspect’ ground under the Convention so as to engender a wider margin of appreciation.[15] In addition, general measures of economic or social policy or criminal matters would also engender a wider margin of appreciation, although it is questionable whether private objectives might fall into these categories. It has also stated that “traditions, general assumptions[,] or prevailing social attitudes”[16] would not in themselves be sufficient to justify a difference in treatment, a fact which might be particularly relevant in the context of preferential treatment.

 

General Conclusions

All of us could probably point, if asked, to a preferential treatment which we have stumbled upon in our day to day lives. Whether it is a gym discount or state subsidy for certain groups of people, these types of treatment are ubiquitous in our everyday lives and have become societal norms. However, they are not necessarily benign, and in every one of these treatments there is possibly a winner and a loser. In many cases, preferential treatment serves a justifiable purpose – for example, the entitlement to a state pension at a certain age. However, there are cases where the means sought to achieve these aims are inappropriate or where the aims themselves are not legitimate. This short excursion into this thorny question indicates that there are movements afoot, certainly at an EU level, to subject these measures to more scrutiny in both their construction and application. This will also have a consequential impact on the determinations of international courts and tribunals in these matters and on society’s normalization of such treatments.

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[*] Dr. Elaine Dewhurst is an Associate Professor of Law (Senior Lecturer) at the University of Manchester and the ground expert on age for the European Equality Law Network.

[1] Council of Eur., et. al., Handbook on European Non-Discrimination Law, (2018) .

[2] Id. at 71.

[3] Council Directive 2000/78/EC art. 3(1), 2000 O.J. L 303.

[4] Case C-144/04, Werner Mangold v Rüdiger Helm ECLI:EU:C:2005:709.

[5] Case C‑414/16, Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V. ECLI:EU:C:2018:257.

[6] Eur. Conv. on H.R.,  Art. 14, and Protocol 12.

[7] Sacha Prechal, Horizontal Direct Effect of the Charter of Fundamental Rights of the EU, Revista de Derecho Comunitario Europeo 66, 407-426 (2020).

[8] Id. at 418.

[9] Council Directive 2000/78/EC art. 3(1)(a) 2000 O.J. L 303.

[10] Directorate Gen. for Just. and Consumers (Eur. Comm’n) & Eur. Network of Legal Experts in Gender Equal. and Non-Discrimination., Age Discrimination Law Outside the Employment Field, DS-01-20-454-EN-N (2020).

[11] ‘Proposal for a Council Directive on Implementing the Principle of Equal Treatment between Persons Irrespective of Religion or Belief, Disability, Age or Sexual Orientation, {SEC(2008) 2180} {SEC(2008) 2181} /* COM/2008/0426 Final – CNS 2008/0140 */.’, n.d.

[12] Council Directive 2000/78/EC art. 6, 2000 O.J. L 303.

[13] Bernadette Rainey, et. al., Jacobs, White and Ovey: The European Convention on Human Rights, (8th ed. 2020).

[14] Id.

[15] Khamtokhu and Aksenchik v. Russ., Apps. Nos. 60367/08 & 961/11 (2017), 78.

[16] Khamtokhu and Aksenchik v. Russ., Apps. Nos. 60367/08 & 961/11 (2017), 78.