Ageism during employment and work: what actions of the employer are illegal and how to protect yourself

Age discrimination in the workplace remains one of those issues that is talked about a lot, but which in practice people are often left alone with. Age restrictions in vacancies, biased attitude during interviews, refusal of promotion or dismissal due to age are often presented as “employer requirements”, although in reality they may indicate a violation of the human right to equal treatment in employment relations.

Lawyers from the law firm “Repeshko and Partners” commented on the legislative regulation of age discrimination, and also told in which cases such actions of the employer are illegal, what mechanisms of protection the employee has, and what those who have encountered manifestations of ageism during employment or already at work should pay attention to.

Probably, many people looking for a job have come across advertisements like: “we invite young, energetic boys and girls…”, “we are looking for a woman of pleasant appearance up to 35 years old…” and others in which one directly or indirectly reads about hiring exclusively citizens of a certain age. However, according to statistics, the most vulnerable categories of the population in terms of employment or promotion on the career ladder are young people under 25 years old, or people older than 45-50+. Employers consider them “still professionally unsuitable” or “already professionally unsuitable.” All this is a clear example of discrimination.

The Law of Ukraine “On the Principles of Preventing and Counteracting Discrimination in Ukraine” defines discrimination as a situation in which a person is restricted in the exercise of his or her rights on a certain basis, including age, without a legitimate and objectively justified purpose. With regard to the sphere of labor relations, this principle is specified in Article 2-1 of the Labor Code of Ukraine: any discrimination in hiring, changing working conditions, or dismissal is expressly prohibited.

Age discrimination is a form of discrimination and violation of human and civil rights, also called ageism (from the English age). Ukrainian legislation categorically prohibits discrimination in the labor sphere. In addition to the previously mentioned Labor Code of Ukraine, the Law “On Advertising” prohibits indicating the desired age of a candidate in job advertisements. Violation of this norm is subject to a fine of ten times the minimum wage (currently UAH 86,470). The fine is imposed by the central executive body in accordance with the procedure established by the Cabinet of Ministers of Ukraine.

However, in practice, these norms are most often violated, and this actually happens with the tacit consent of the employees themselves, because when they see a job advertisement with the specified age limit, they silently turn it over and continue to look for vacancies.

However, there are cases when age discrimination may be legal if:

• Belonging to a certain age group is important for work – it is a professional requirement (for example, the work of theater actors, who need types of heroes of the appropriate age, or the work of a loader, which requires significant physical strength, which is excluded in old age);
• Age discrimination may in a certain way be legalized in a separate enterprise or organization, if the employer can justify that there is a sufficiently weighty reason for the policy of introducing age-based discriminatory measures.

It should be noted that, as a general rule, ageism in our country is condemned, while the current legislation has clearly spelled out norms for combating this phenomenon:

• Constitution of Ukraine (Art. 35);
• Labor Code of Laws of Ukraine (Art. 2-1);
• Civil Code of Ukraine (Art. 270);
• Code of Ukraine on Administrative Offenses (Art. 173-6);
• Criminal Code of Ukraine (Art. 161);
• Law of Ukraine “On the Principles of Prevention and Counteraction of Discrimination in Ukraine”, etc.

In addition, the Constitution of Ukraine in Article 21 guarantees the equality of all people in rights and freedoms. These provisions are specified in the legislation. Also, Article 11 of the Law of Ukraine “On the Basic Principles of Social Protection of Labor Veterans and Other Elderly Citizens in Ukraine” guarantees the equal right to work for elderly citizens. Dismissal on the grounds of reaching retirement age or transfer without the consent of the employee is prohibited if essential working conditions change.

At the same time, the Verkhovna Rada of Ukraine Commissioner for Human Rights monitors compliance with anti-discrimination legislation in Ukraine. This is stipulated in Article 10 of the Law of Ukraine “On the Principles of Preventing and Counteracting Discrimination in Ukraine”. Articles 14-16 of the same law determine the liability for its violation: civil, administrative and criminal.

The law also clearly explains what rights a person has if he or she believes that he or she has been discriminated against. In such a case, he or she may file a complaint with state bodies, authorities of the Autonomous Republic of Crimea, local self-government bodies, their officials, apply to the Verkhovna Rada of Ukraine Commissioner for Human Rights or directly to the court. At the same time, filing a complaint cannot be the cause of prejudiced treatment of such a person and should not entail any negative consequences for him or other persons.

Separately, the law provides for the right of the injured person to demand compensation for both material and moral damage, if they were caused as a result of discrimination. The procedure for such compensation is determined by the Civil Code of Ukraine and other laws. Persons who have violated the requirements of the legislation on the prevention and counteraction of discrimination may be held civil, administrative or criminally liable.

What exactly can be considered manifestations of ageism? Practice identifies the following grounds:

• refusal to hire due to being “too young” or “too old”;
• setting age requirements in existing job vacancies;
• unfounded decisions on transfer or dismissal based on age;
• refusal to promote or develop an already employed person.

We are often asked: what specific sanctions are provided for discrimination based on age? The Code of Ukraine on Administrative Offenses contains Article 173-6, which establishes liability for gender-based violence. This refers to intentional actions or inaction of a physical, psychological or economic nature committed against a specific person because of their belonging to a certain gender or because of stereotypical ideas about the social role of women or men in society. A mandatory sign of such an offense is that as a result of these actions, the victim suffered harm to their physical or mental health, but without causing bodily harm.

The law provides for several types of administrative penalties for such a violation. This may be a fine in the amount of one hundred to two hundred non-taxable minimum incomes of citizens, that is, from 1,700 to 3,400 hryvnias. The court may also impose community service for a period of twenty to forty hours or corrective labor for a period of up to one month with a deduction of twenty percent of earnings.

If a person commits the same violation again within a year after having already been subjected to administrative penalties under part one of this article, the liability is increased. In such a case, a fine of two hundred to three hundred non-taxable minimum incomes of citizens, that is, from 3,400 to 5,100 hryvnias, is provided. In addition, possible sanctions include community service for a period of forty to sixty hours, correctional labor for a period of one to two months with a deduction of twenty percent of earnings, or administrative arrest for a period of up to ten days.

The Criminal Code of Ukraine also contains relevant provisions. In particular, Article 161 provides for liability for intentional actions aimed at inciting national, regional, racial or religious enmity and hatred, humiliation of national honor and dignity, insulting the feelings of citizens due to their religious beliefs, as well as for direct or indirect restriction of rights or granting of privileges on the grounds of race, skin color, political, religious and other beliefs, gender, disability, ethnic or social origin, property status, place of residence, language or other grounds.

For such actions, the law provides for a penalty in the form of a fine of two hundred to five hundred tax-free minimum incomes of citizens, restriction of liberty for a term of up to five years, or imprisonment for a term of up to three years. In addition, the court may additionally deprive the guilty person of the right to hold certain positions or engage in certain activities for a term of up to three years or not apply such additional punishment.

If the same actions were combined with violence, fraud, or threats, or if they were committed by an official, the liability is increased. In such a case, a fine of five hundred to one thousand tax-free minimum incomes of citizens or imprisonment for a term of two to five years is provided, also with possible deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without such.

The most severe punishment is established for actions provided for in parts one or two of this article, if they were committed by an organized group or caused grave consequences. In this case, it is a matter of imprisonment for a term of five to eight years.

Separately, the law gives the injured person the right to demand compensation for material damage and compensation for moral damage caused by unlawful actions. At the same time, moral damage is subject to compensation regardless of whether there was material damage, and does not depend on its size.

And now the main question that quite often worries ordinary citizens: how to prove any manifestations of ageism? If there is a suspicion that the motive for refusing to hire or promote was the issue of age, it is important to record the relevant circumstances – in particular, to maintain written correspondence or other methods of documentation that can be used as evidence. The legislation does not limit what exactly can be evidence, noting that it can be any data that indicates a violation of your rights. That is why it is possible to actively use the following evidence:

• correspondence via e-mail;
• correspondence via instant messengers;
• audio recording of a telephone conversation;
• audio/video recording of a conversation or offline meeting;
• witness testimony;
• reporting or explanatory notes within the enterprise;
• other evidence.

Another of our recommendations for combating ageism is publicity. This is the most effective way to combat discrimination. It can be expressed in writing about discrimination on social networks, on specialized websites or forums, be sure to indicate the name of the company and the name of the person who discriminated against you. At the same time, if you have any of the evidence listed above, then this will generally be an excellent option.

It should be noted that cases related to age discrimination are quite exotic in the justice system. The length of the case review and the sluggishness of the judicial system do not add optimism and the desire to get involved in legal red tape, however, taking into account the aging of the Ukrainian nation, the age issue will continue to become increasingly relevant in the field of labor relations.

Therefore, we advise you to be attentive to any manifestations of age restrictions during employment or work, not to perceive them as “usual practice”, record all possible evidence of a violation and, if necessary, seek legal protection from lawyers.