Rossette S.

Anasario

Republic Act 10911

AN ACT PROHIBITING DISCRIMINATION AGAINST ANY INDIVIDUAL IN

EMPLOYMENT ON ACCOUNT OF AGE

History and Background

Before her term ended, then-Senator Pia Cayetano authored a bill that
prohibits companies from discriminating against job applicants and employees
on the basis of their age. It has lapsed into law on July 21, 2016, by virtue of
Article VI, Section 27 of the 1987 Constitution where bills lapse into law if it was
not vetoed by the President though he did not sign it.

The law was a result from the complaints of the citizens against companies
refusing to hire applicants because they do not meet given age requirements in
job hiring. This is very evident in job advertisements where companies have
preference for people of a certain age bracket. Usually, the highest acceptable
age that can be hired is 35.

Known officially as Republic Act 10911 or the Anti-Age Discrimination Act, it

is unlawful for an employer to decline a job applicant or force existing
employees into early retirement due to age as the sole factor.

At the same time, companies are not allowed to dismiss employees who have
reached a certain age. One such industry said to be practicing this is the airline
industry in what insiders would call the “beerhouse mentality.” Those mainly
affected are flight attendants. The company would force into retirement anyone
who has reached the age of 40.

No company has given reasons why they would not accept “overaged”
applicants or why they force employees to leave even if they have not reached
the retirement age of 60 or 65. According to the opinions of those opposed to
age discrimination, companies wanted the energy and enthusiasm of youth and
are more driven due to their ambitions. They think younger people are more
trainable than older people. They suspect in some companies that the reason
they prefer younger employees is they can easily be intimidated or coerced by
seniors as opposed to older people who are more experienced and resistant to
such practice.

Among those affected by age discrimination are Overseas Filipino Workers

(OFW’s). Despite their experience, they could not get any job in the Philippines
because they are “overqualified” which appears to have become a euphemism
for not being accepted due to their age. As a result, they are forced to continue
working abroad.

However, not all employers are warm to this law. The Employers
Confederation of the Philippines (ECOP) feel this law is unjust in the sense it
takes away their prerogative in determining the status of an applicant or
employee based on other factors. What can be gleaned here is anyone who
might not agree with them might invoke this law which will put them in a bad
light.

Nevertheless, Senator Cayetano feels that this practice is unjust. In her

opinion, everyone must be equal in terms of opportunities. Age is immaterial.
What should matter is performance, regardless of age. There are many cases
citing other countries that employ or retain people over 40. Even senior citizens
are allowed to stay on so as long as they can do the job.

RA 10911 is very timely because it dovetails into the platform of the Duterte
Administration which promises to reduce unemployment, and to anyone
planning to work abroad, it will be a matter of choice and not a necessity.
Although OFW’s have contributed greatly in their remittances, the Philippines
continues to suffer from “brain drain” because the country’s talented
professionals are forced to seek opportunities abroad because there are none
here, and age discrimination is one of those reasons. It is hoped that meritocracy
shall be practiced in the workplace and there must be no discrimination in any
shape or form.

Definition of Terms

(a) Employee refers to a person who performs professional, managerial or

administrative work and is paid salaries by the employer as compensation for
services rendered;

(b) Employer refers to any person, natural or juridical, employing the services of
an employee or worker and shall include the government and all its branches,
subdivisions and instrumentalities, all government-owned and -controlled
corporations, and government financial institutions, as well as nonprofit private
institutions or organizations;

(c) Job applicant refers to a person who applies for employment;

(d) Labor contractor refers to any person or an agent of that person who
regularly undertakes, with or without compensation, the procurement of
employees or workers for an employer, or the procurement for employees' or
workers' opportunities to work for an employer;

(e) Labor organization refers to any union or association of employees or

workers which exists in whole or in part for the purpose of collective bargaining
or for dealing with employers concerning terms and conditions of employment;
(f) Publisher refers to any person or juridical entity engaged in the printing of
information on paper and its distribution, buying or securing of airtime or space
on television, radio or the internet, and other similar media; and

(g) Worker refers to a person who performs manual labor involving skilled or
unskilled work, and is paid wages by the employer as compensation for services
rendered.

Important Points

The law has for its avowed purposes the following:

a) promotion of employment on the basis of ability, knowledge, skills, and

qualification;

b) prohibition against arbitrary age limitations in employment; and c) promotion

of the right of all employees and workers, regardless of age, to be treated
equally in terms of compensation, benefits, promotion, training and other
employment opportunities. The law covers all employers, labor
contractors/subcontractors, and labor organizations.

The law enumerates several prohibited acts for an employer, labor

contractor/subcontractor, labor organization, and a publisher.

Section 5 (a) of the law provides that it shall be unlawful for an employer to
do the following:

a) Print or publish, or cause to be printed or published, in any form of media,

any notice of advertisement relating to employment suggesting preferences,
limitations, specifications, and discrimination based on age;
In this connection, a publisher is prohibited from printing or publishing any
notice of advertisement relating to employment suggesting preferences,
limitations, specifications, and discrimination based on age.

b) Require the declaration of age or birth date during the application process;

c) Decline any employment application because of the individual’s age;

d) Discriminate against an individual in terms of compensation, terms and

conditions or privileges of employment on account of age;

e) Deny promotion or opportunity for training because of age;

f) Forcibly lay off an employee or worker because of old age; and

g) Impose early retirement on the basis of age.

On the other hand, a labor contractor/subcontractor cannot refuse to refer for

employment an individual because of his age; or otherwise discriminate against
any individual because of his age. For a labor organization, it cannot deny
membership to any individual because of his age; exclude from its membership
any individual because of his age; and cause or attempt to cause an employer to
discriminate against an individual in violation of this law.

The law, however, admits of several exceptions (Section 6).

For instance, an employer is allowed to prescribe age as a requirement for

employment if “age is a bona fide occupational qualification (BFOQ) or where
the differentiation is based on reasonable factors other than age.” Philippine
jurisprudence mandates that, to justify a BFOQ, the employer must prove two
factors: 1) that the employment qualification (in this case, age) is reasonably
related to the essential operation of the job involved; and 2) that there is a
factual basis for believing that all or substantially all persons meeting the
qualification would be unable to properly perform the duties of the job.

The other exceptions provided under the law are:

a) the intent is to observe the terms of a bona fide seniority system;

b) the intent is to observe the terms of a bona fide employee retirement or a

voluntary early retirement plan consistent with the purpose of RA 10911; or

c) the action is duly certified by the Secretary of Labor and Employment.

Penalty (Section 7)

For violating the law, an individual or entity shall be meted the penalty of fine of
not less than fifty thousand pesos (P50,000) but not more than five hundred
thousand pesos (P500,000) or imprisonment of not less than three (3) months
but not more than two (2) years, or both at the discretion of the court. If the
offense is committed by a corporation, trust, firm, partnership or association or
other entity, the penalty shall be imposed upon the guilty officer or officers of
such corporation, trust, firm, partnership or association or entity.