Bona fide occupational qualification

DearPAO, Canthepolicyofmyemployer inhiringyounglaborersbeconsidered AgeDiscriminationAct?

Lenny

Dear Lenny,

Age as a qualification for employment is not always considered as a violation of Republic Act (RA) 10911, or the “Anti-Age Discrimination in Employment Act.” In fact, under Section 6 of the afore-stated rule, the following exemptions are provided:

“It shall not be unlawful for an employer to set age limitations in employment if:

“(a) Age is a bona fide occupational qualification reasonably necessary in the normal operation of a particular business or where the differentiation is based on reasonable factors other than age;

“(b) The intent is to observe the terms of a bona fide seniority system that is not intended to evade the purpose of this Act;

“(c) The intent is to observe the terms of a bona fide employee retirement or a voluntary early retirement plan consistent with the purpose of this Act: Provided, That such retirement or voluntary retirement plan is in accordance with the Labor Code, as amended, and other related laws; or

“(d) The action is duly certified by the Secretary of Labor and Employment in accordance with the purpose of this Act.”

Thus, age requirement is allowed if the same is a bona fide occupational qualification in the business of the employer. Bona fide occupational qualification was further explained by the court in the case of Yrasueguivs. PhilippineAirLines,Inc., (GR 168081, Oct. 17, 2008), where the Supreme Court through Associate Justice Ruben Reyes stated:

“In BritishColumbiaPublic ServiceEmployeeCommission (BSPSERC)v.TheBritishColumbia Employee’sUnion(BCGSEU), the

Supreme Court of Canada adopted the so-called ‘Meiorin Test’ in determining whether an employment policy is justified. Under this test, (1) the employer must show that it adopted the standard for a purpose rationally connected to the performance of the job; (2) the employer must establish that the standard is reasonably necessary to the accomplishment of that work- related purpose; and ( 3) the employer must establish that the standard is reasonably necessary in order to accomplish the legitimate work-related purpose. Similarly, in Star Paper Corporation v. Simbol, this Court held that in order to justify a BFOQ, the employer must prove that (1) the employment qualification is reasonably related to the essential operation of the job involved; and (2) that there is factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job.

“In short, the test of reasonableness of the company policy is used because it is parallel to BFOQ. BFOQ is valid “provided it reflects an inherent quality reasonably necessary for satisfactory job performance.”

Applying the above- quoted decision in your situation, age requirement per se as a qualification for employment will not always be considered as a discriminatory act especially if age is a bona fide occupational qualification. Age as a bona fide occupational qualification is valid provided it reflects an inherent quality reasonably necessary for satisfactory job performance. Thus, if your employer can justify that the requirement of age is really connected to the performance of the job, then he might not be violating the provision of the Anti-Age Discrimination in Employment Act.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’ s note: Dear PA O is a daily column of the Public Attorney’ s Office. Questions for Chief A costa maybe sent to dear pao@ manila times.