Venezuela

This summary of age discrimination law in Venezuela has been prepared by D'Empaire Reyna Abogados, the Ius Laboris affiliate for Venezuela: www.dra.com.ve

USA

This summary of age discrimination law in the USA has been prepared by Ford Harrison, the Ius Laboris member for the USA: www.fordharrison.com

Peru

This summary of age discrimination law in Peru has been prepared by Estudio Olaechea, the Ius Laboris member for Peru: www.esola.com.pe

Panama

This summary of age discrimination law in Panama has been prepared by Arosemena Noriega & Contreras, the Ius Laboris member for Panama: www.arnoco.com

Mexico

This summary of age discrimination law in Mexico has been prepared by Basham, Ringe y Correa, the Ius Laboris member for Mexico: www.basham.com.mx

Guatemala

This summary of age discrimination law in Guatemala has been prepared by Bonilla, Montano Toriello & Barrios: www.bonilla.com.gt

Colombia

This summary of age discrimination law in Colombia has been prepared by Brigard & Urrutia Abogados, the Ius Laboris member for Colombia: www.bu.com.co

Chile

This summary of age discrimination law in Chile has been prepared by Philippi Prietocarrizosa Ferrero DU & Uria: www.philippi.cl

Canada

This summary of age discrimination law in Canada has been prepared by Mathews Dinsdale, the Ius Laboris member for Canada: www.mathewsdinsdale.com

Brazil

This summary of age discrimination law in Brazil has been prepared by Veirano Advogados, the Ius Laboris member for Brazil: www.veirano.com.br

Argentina

This summary of age discrimination law in Argentina has been prepared by Funes de Rioja & Asociados, the Ius Laboris member for Argentina: www.funes.com.ar  

Egypt

This summary of age discrimination law in Egypt has been prepared by Shalakany Law Office: www.shalakany.com

South Korea

This summary of age discrimination law in South Korea has been prepared by Yulchon LLC: www.yulchon.com

Overview

The Prohibition of Age Discrimination in Employment and Aged Employment Promotion Act (the “AEPA”) is the primary law that specifically deals with age discrimination related issues in Korea.  Although other laws such as the Framework Act on Enforcement Policy and the National Human Rights Commission Act (the “NHRCA”) also have provisions prohibiting age discrimination in employment, those other laws by themselves provide only an investigatory procedure resulting in a non-binding recommendation or a mere statement, with no means of obtaining enforceable, binding remedies for age discrimination.  To remedy this absence, the AEPA was enacted in 2008, amending the former Aged Employment Promotion Act.  A major impetus for the enactment of the AEPA was the fact that roughly half of Korean companies had been setting age limits or considering age as a factor with respect to recruitment and redundancies, which had become a social issue of great concern in Korea.

Age discrimination under the AEPA means treating a person or members of an age group disadvantageously compared to other persons of a different age or age group under similar circumstances.  The concept of discrimination includes not only economic disadvantages but also non-economic disadvantages.  Disadvantages that have not occurred but are expected to occur in future also fall within the concept of discrimination.

Direct Discrimination (Disparate Treatment)

The AEPA expressly prohibits employers from discriminating against individuals on the basis of age regarding recruitment and employment, salary, education and training, placement, transfer, or promotion. [1]

Indirect Discrimination (Disparate Impact)

Any adverse effect on a certain age group that results from applying standards that are on their face age-neutral is deemed to be age discrimination absent from sufficiently justifiable reasons.[2]  The prohibition of indirect discrimination may bar the use of seemingly neutral standards such as knowledge, experience or qualifications, where as a result of applying these standards, a certain age group is unreasonably disadvantaged.

Since the AEPA only prohibits discrimination without justifiable grounds, if an employer is able to prove justifiable grounds for the employer’s discriminatory act, or policy with a disparate impact on a certain age group, the employer has not violated the AEPA.

Who’s covered?

The AEPA applies to virtually all employers of any size, and covers all age groups meaning that both elderly and younger workers are protected from discrimination.

What enforcement/remedies exist?

An employee who has suffered discrimination based on age may file a petition [3] with the National Human Rights Commission (the “NHRC”) pursuant to Article 30 of the NHRCA.[4] The NHRC will then investigate the claim and may issue a non-binding advisory opinion, and notify the Ministry of Employment and Labour (the “MOEL”) thereof.  If the employer fails to comply with the NHRC’s advice without providing a justifiable reason, and if the discrimination is substantial,[5] the MOEL, either at the employee’s request[6] or sua sponte, may order the employer to rectify the discriminatory behaviour. Failure to comply with such an order may result in an administrative fine of up to KRW 30 million.[7] Moreover, discriminatory treatment in the context of recruiting or hiring may be subject to a criminal fine of up to KRW 5 million,[8] separately from the petition process through the NHRC.

How common are claims?

According to the statistics provided by the NHRC[9] in January 2014, after the enactment of the NHRCA, roughly 80,000 petitions have been made.  Among them, 21% were discrimination related petitions.  Approximately 7% of all petitions were regarding age discrimination. 

Since the implementation of the AEPA, over the first 5 years (2009-2013) an average of 157 petitions regarding age discrimination were filed annually, which is more than double the numbers filed in 2008.[10]

What claims are most common and what are trickiest issues for employers?

The most common type of petition filed with the NHRC is for discrimination claims involving recruitment and employment, while petitions regarding discrimination in other areas such as transfer, promotion and education have been relatively small in number.[11]  Although not covered by the AEPA, age-discrimination petitions in non-employment areas have seen a considerable increase with 17 cases in 2008, and 44 in 2012.[12]

Are there any specific exceptions in your laws?

The AEPA[13] enumerates several justifications for policies and practices that otherwise might constitute unlawful age discrimination, namely:

  • Where a certain age limit is inevitably required in light of the nature of the relevant duties;
  • Where compensation and benefits are differentiated based on length of service;
  • Where a retirement age is set by an employment contract, rules of employment, or CBA, pursuant to the AEPA or other laws;
  • Where support measures are taken to maintain and promote the employment of a certain age group pursuant to the AEPA or other laws.

Retirement ages

An employer’s internal retirement age is highly significant in Korea, because it is extraordinarily difficult to involuntarily terminate employees prior to their reaching the mandatory retirement age set by company policy.  The AEPA expressly states that when an employer sets a retirement age for employees, the employer must set the age no lower than 60 years of age.[14] If an employer sets the retirement age lower than 60 years it is deemed extended to 60 years.[15] This mandatory floor for companies retirement ages[16] is expected to have a significant impact on the country’s labour sector.  Many of the top corporations in Korea have already, or intend to, adopt a wage-peak system as a way of mitigating the burden of paying employee salaries to workers who otherwise would have been required to retire.  A wage-peak system involves applying regular salary reductions – instead of raises – to employees after they reach a certain age, for the remainder of their service until reaching the retirement age.  The introduction of wage-peak systems is a matter of significant controversy and opposition by labour unions and workers organisations, and the legal question of whether such a policy requires collective employee consent is as yet not definitively resolved.[17]

Interesting cases

None

Footnotes

[1] AEPA, Article 4 – 4(1)

[2] AEPA, Article 4 – 4(2)

[3] A petition must be filed within 1 year from the date the claim has arisen. (NHRCA, Article 32(1))

[4] AEPA, Article 4-6(1).  So, the agency who initially determines matters relating to age discrimination is the NHRC, even if it is relating to the employment and labour issues.

[5] “Substantial discrimination” refers to situations including discrimination against 2 or more people, repeated discrimination, and intentional non-compliance.  (AEPA, Article 4-7(1)).

[6] Such request has to be made within 6 months from the date of the NHRC’s advisory opinion.  (AEPA, Enforcement Decree, Article 4 (2)).

[7] AEPA, Article 24(1)

[8] AEPA, Article 23-3(2).  Due to the dual liability provision, not only the company but also a representative director or other person responsible for such discrimination can be liable (AEPA, Article 23-4).

[9] NHRC Press Release, dated January 13, 2014

[10] Discussion Material published by the NHRC – Form on AEPA: Past 5 Years (March 27, 2014), p.27.

[11] Id., p.27.

[12] Id., p.27.

[13] AEPA, Article 4-5

[14] AEPA, Article 19(1)

[15] AEPA, Article 19(2)

[16] This mandatory floor was adopted in 2013 by amending the AEPA, and will be implemented from 2016 for companies or public enterprises with 300 employees or more, and from 2017 for the rest of employers.

[17] Adopting a wage-peak system typically requires amendment of existing work rules or rules of employment of a company.  Work rules may be amended by a company through consultation with employees.  If such amendment is considered adverse to employee’s interests however, the company generally must obtain the majority consent of those affected employees, except for a case where those changes are “reasonable in accordance with established social norms”.  Whether adoption of a wage-peak system is adverse change requiring employees consent, and even so, whether it may fall in a limited exception are matters of significant controversy in Korea.  For more discussion on this topic, please refer to my article Mandatory Minimum Retirement Age and Wage-System Reform, published in Labour Post, Vol. 006 (July 2015).

Singapore

This summary of age discrimination law in Singapore has been prepared by Rajah & Tann, the Ius Laboris affiliate for Singapore: www.rajahtannasia.co

India

This summary of age discrimination law in India has been prepared by Kochhar & Co, the Ius Laboris member for India: www.kochhar.com

New Zealand

This summary of age discrimination law in New Zealand has been prepared by Kiely Thompson Caisley, the Ius Laboris affiliate for New Zealand: www.ktc.co.nz

China

This summary of age discrimination law in China has been prepared by Fangda Partners, the Ius Laboris affiliate for China: www.fangdalaw.com

Australia

This summary of age discrimination law in Australia has been prepared by Corrs Chambers Westgarth: www.corrs.com.au