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Introduction
Legal interventions concerning age were once generally limited to setting minimum age limits for activities such as marriage, leaving education, paid employment, consuming alcohol and driving and for establishing rules concerning retirement. However, concerns about the impact of the ageing population on economic growth, welfare costs and inter-generational fairness prompted the European Union (EU) to pass the Employment Equality Framework Directive 2000/78/EC (the Framework Directive), requiring EU Member States to implement legislation prohibiting age discrimination.1 The UK followed with the Employment Equality (Age) Regulations 2006 and later the Equality Act 2010, which prohibits unjustified unequal treatment on the grounds of age and disadvantaging particular age groups in access to employment, training and education; membership of associations and clubs and provision of goods and services.2
Despite this legal intervention, age retains a reputation as a less serious ground of discrimination, and this has impacted on the level of scrutiny the courts have been willing to offer when evaluating whether age-differential treatment is objectively justified and therefore lawful under anti-discrimination law.3 The UK courts and the Court of Justice of the European Union (CJEU) have often offered a low level of scrutiny in evaluating the justifiability of age-differential treatment, including a lack of scrutiny on the legitimacy of the defendant's aims and a lack of engagement with the discriminatory impact of treatment.4 Furthermore, a number of judges at the UK and EU level have asserted that age discrimination must be understood as ‘different’ from other discrimination.
Three major arguments have been used in support of understanding age discrimination as different and less serious, including: that age-differential treatment is often a rational means of promoting social and economic objectives;5 that age-differential treatment can be compatible with equality of opportunity to a greater extent than other differential treatment;6 and that age-differential treatment is not demeaning in the way other differential treatment is.7
This paper argues that, contrary to the above arguments, age discrimination should not be considered fundamentally different or prima facie less serious than other forms of discrimination. Age-differential treatment can be wrong, I argue, for the same reasons that race and sex-differential treatment can be wrong, namely, it can express animosity, convey demeaning ideas about...