One of the explicit purposes of the General Equal Treatment Act is to reduce or eliminate discrimination based on age.
Though the General Equal Treatment Act was enacted only about eight months ago, it is predicted that age discrimination will be the most significant factor in practice in the employment arena (followed by sex discrimination).
Various statutory employment provisions, as well as collective bargaining agreement provisions or agreements with works councils, will not pass muster under the General Equal Treatment Act. For example, under German employment law, statutory termination notice periods are based on the employee’s years of service; however, Germany’s Civil Code sets forth that the employment period prior to the employee reaching the age of 25 will not be considered when calculating years of service. It is doubtful that this complies with the General Equal Treatment Act. The following discusses what factors, in terms of age, must be taken into consideration when applying the General Equal Treatment Act:
Pr otection of Em ployees – Regard less of Age
Unlike the Age Discrimination in Employment Act of the United States (ADEA ), under which only employees 40 years old and over are protected, the General Equal Treatment Act applies to all employees, regardless of age. This means that if an employee is the subject of discrimination because of his youth, he may also file a claim under the Act. The General Equal Treatment Act does not set forth a minimum or maximum age.
The General Equal Treatment Act protects against direct as well as indirect discrimination. An indirect form of discrimination may be based on factors other than merely the employees’ ages, though the criteria that the employer uses have some connection to the employees’ ages. For example, if an aspect of the employment relationship is based on years of service and this impacts a disproportionate number of younger or older employees, then this could constitute a violation of the General Equal Treatment Act. So as not to run afoul of the Act, any unequal treatment based on age must be due to an acceptable objective reason, or a permissible reason particular to the employee or group of employees at issue.
General Perm issible Reason for Unequal Tr eatment
A general permissible criterion concerning different treatment based on age may be due to specific job requirements. An obvious example that is often cited in legal treatises involves an actor for the role of “young lover”; this role cannot be filled by a 60-year-old. Such unequal treatment may also be permissible for jobs that involve arduous physical tasks or quick reflexes, e.g., a fireman, air traffic controller, or pilot. (For a discussion regarding pilots, see the article “May Pilots Be Prohibited From Flying Based on Age? The First Court Rulings Regarding the General Equal Treatment Act” in this issue of German Labor and Employment News.)
Particular Justification for Unequal Tr eatment
An employer may treat employees differently based on age pursuant to the German Equal Treatment Act only if this is for an objective reason, is reasonable, and is legitimately justified. The General Equal Treatment Act includes a nonexhaustive list as to why an employer may treat an employee unequally based on age. The list includes the following:
- O ffering higher levels of compensation to employees who have greater job experience, as long as this is not related solely to age, is probably acceptable. Conversely, compensation levels in collective bargaining agreements that are tied strictly to an employee’s age will presumably be subject to review within the context of the German Equal Treatment Act and not pass muster.
- Minimum requirements for an age group may be permissible, as they are usually tied to job experience. Also, under certain circumstances an employer may set a maximum age when seeking to hire an employee, particularly if it will take a long time for the employee to complete his on-the-job training and it does not make sense, from a financial perspective, to hire an older employee.
- It is probably permissible to set a minimum age to be eligible for pension payments.
- T o have a statutory retirement age setting forth when an individual is eligible for a pension is permissible. This means that an employment relationship can automatically end upon reaching that age without requiring the employer to issue a notice of termination.
- T he General Equal Treatment Act permits unequal treatment based on age for severance payments to employees under a Social Plan. (Social Plans set forth the level of compensation to be paid to employees who lose their jobs as part of a mass layoff.)
As indicated above, the preceding list is not exhaustive. As a result, employers may treat employees unequally based on age for reasons other than those set forth above. The burden on employers, however, is high, to ensure that they do not run afoul of the General Equal Treatment Act.