International Comparisons
AARP Attorneys Advise European Union On Age Discrimination Law
Opinion
August 2005
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Thomas Osborne
Senior Attorney
AARP Litigation
For the past four years my AARP colleagues Laurie McCann, Dan Kohrman, and I have been participating in the Anti-Discrimination Expert Group of AGE –The European Older Peoples’ Platform. Founded in January 2001, AGE voices and promotes the interests of older people in the European Union (EU) to raise awareness of the issues that concern them most. Membership in AGE is open to European, national, and regional non-profit organizations of and for older people. AGE, which is co-financed by its members and by the European Commission, is involved in a range of policy and information activities designed to put older people’s issues on the EU agenda and to support networking among older people’s groups. AGE is committed to combating all forms of age discrimination in all areas of life and aims to monitor and influence the implementation of the various EU initiatives affecting the interests of older people.
The Anti-Discrimination Expert Group or ADEG, in which AARP has been granted Observer status, is composed of representatives from all 25 EU Member States with expertise in many areas of aging. The primary focus of the ADEG has been monitoring the implementation by the Member States of the Framework Directive on Equal Treatment (or simply the Framework Directive) adopted by the Council of the European Union in November 2000. This Directive, which provides “a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment,” establishes the “minimum requirements” that each Member State was required to “transpose” into in its national legal structure by December 2003 unless it requested the allowed three-year extension until December 2006 for the age and disability grounds. AARP’s role as an Observer in this process is to provide advice regarding the interpretation and enforcement of antidiscrimination laws based on America’s more than thirty years of experience with the federal Age Discrimination in Employment Act (ADEA). In fulfilling our Observer obligation, Laurie, Dan, and I have pointed out to the ADEG members, most of whom are not lawyers, the many strengths of the Framework Directive as well as several areas of weakness where the Member States could accord significantly greater protection to their older workers by enacting laws providing for more than the minimum requirements of the Directive.
Unfortunately, as pointed out in the Equality and Non-Discrimination Annual Report 2005 of the Directorate-General for Employment, Social Affairs and Equal Opportunities of the European Commission, although some progress has been made in implementing the Directive, “discrimination continues to exist and more need to be done to ensure that the legal framework is properly implemented and enforced.” In its “Analysis of the State of Transposition of the Employment Directive at December 2004,” AGE reported more frankly that progress on implementation has been “disappointing” because action in the various Member States has been “patchy and incomplete.” Indeed, the European Commission has not been impressed with the transposition efforts of several Member States. In December 2004, the Commission referred Austria, Finland, Germany, Greece, and Luxembourg to the European court of Justice for failing to transpose the Directive, although the proceeding against Greece has since been discontinued because that country adopted transposition legislation earlier this year. Nevertheless, whether because of or in spite of the court proceedings against them, it is expected that the other five countries will meet the December 2006 transposition deadline.
Even if all the Member States meet the deadline, however, meaningful reform is likely many years away. There are several reasons for skepticism. First among them is our own experience with the ADEA. Although this law has been in force in the United States for over 37 years, age discrimination on the job has stubbornly resisted efforts to eradicate it, as evidenced by the fact that for the past thirteen years an average of more than 17,000 charges annually alleging such discrimination have been filed with the Equal Employment Opportunity Commission. Second, the entrenched nature of the European social welfare state model in all twenty-five EU countries, which since at least the end or World War II has engendered the reliance of generations of workers on a relatively short work life followed by a long period of retirement supported by a generous state-subsidized pension does not bode well for effective implementation of the changes prescribed by the Directive. Third, due to the anticipated and actual resistance to changes in the Member States’ social welfare systems – for example, last year the Italian government enacted modest pension reforms in the face of massive protests encouraged by the trade unions, there is a lack of political will to follow through with the reforms mandated by the Directive. Fourth, the political disarray caused by the recent repudiation of the proposed EU Constitution by France and The Netherlands may have effectively undermined or at least temporarily derailed whatever incipient impetus for effective reform that may have existed in many countries. Fifth, while the leaders of most EU countries have realized more or less belatedly that their current social welfare systems will shortly become unsustainable due to the ageing population demographic crunch that is much more pronounced and immediate in Europe than in the United States, they shrink from urging needed reforms for fear of being voted out of office by the majority of their citizens apparently satisfied with the status quo. Sixth, even in those countries, such as Ireland, for example, that have implemented the Directive with strong laws, it remains to be seen if the administrative equality bodies and the courts will effectively enforce the reforms by providing adequate remedies for past age discrimination that will have the effect of deterring it in the future.
For these and other reasons, implementing strong protections for older workers in the EU will be a struggle for some time to come. AGE – The European Older Peoples’ Platform with assistance and encouragement from AARP will continue to play a vital role in the fight to fully implement the promise of equal treatment for older workers set forth in the Framework Directive. For the present, to borrow a phrase from a popular song written in the 1970s whose theme still resonates today, “It’s only words.”
Tom Osborne is a Senior Attorney with AARP Litigation in Washington, DC.
Since joining the AARP Work Force Programs Department in 1992, which became part of AARP Litigation upon its founding in 1996, Mr. Osborne has concentrated on age discrimination in employment and retiree benefits and has represented plaintiffs in trials and appeals of cases involving such claims. He has also written and filed on behalf of AARP many friend-of-the-court briefs on employment issues in state and federal courts including the U.S. Supreme Court.
Mr. Osborne received his J.D. from the University of Maryland School of Law and his undergraduate degree from Washington College in Chestertown, Maryland.