Labor Law Special Law

IRR OF R.
A 10911 OR THE “ANTI-AGE DISCRIMINATION IN EMPLOYMENT ACT

(RA 10911 lapsed into law on July 21, 2016)
By: Maricor and Henzen
1. What is the Anti-Age Discrimination in Employment Act?
The Act mandates the elimination of age-based discrimination not only by employers,
but also by labor contractors or subcontractors, whether or not registered. Echoing the
mandate of the Philippine Constitution, it aims to promote equal work opportunities for
everyone by prohibiting arbitrary age limitations in the hiring of applicants, as well as,
the dismissal and retirement of employees.
The Act encourages employers to hire individuals on the basis of their abilities,
knowledge, skills and qualifications, rather than their age. It likewise prohibits arbitrary
age limitations in employment and advances the rights of all employees and workers,
regardless of age, to be treated equally in terms of compensation, benefits, promotions,
training, and other employment opportunities.
In addition, the Act mandates the Department of Labor and Employment (DOLE) to:
(a) Conduct studies and researches on minimizing impediments to the employment
of older persons, and furnish such information to employers, labor groups, and
the general public; and
(b) Promote programs, in coordination with the public and private agencies, which
will further enhance the knowledge and skills of every individual regardless of
age.
2. What are the Prohibited Acts?
(a) It shall be unlawful for an employer to:
When it comes to hiring applicants —

(1) Print or publish, or cause to be printed or published, in any form of media,
including the internet, any notice of advertisement relating to employment
suggesting preferences, limitations, specifications, and discrimination based on
age;
(2) Require the declaration of age or birth date during the application process;
(3) Decline any employment application because of the individual's age;
With regard to the status of an employee —

(4) Discriminate against an individual in terms of compensation, terms and
conditions or privileges of employment on account of such individual's age;
(5) Deny any employee's or worker's promotion or opportunity for training

because of age;
In terms of dismissal and retirement of employees —

(6) Forcibly lay off an employee or worker because of old age; or
(7) Impose early retirement on the basis of such employee's or worker's age.
It must be noted that the Labor Code provides that any employee may be retired
upon reaching the age established in the CBA or other applicable contract. In the
absence of such, an employee may retire at the optional retirement age of 60 (50
years for underground mine workers) but not beyond the compulsory retirement
age of 65 years. A retirement age lower than 60 is allowed provided the
agreement is part of the CBA voluntarily entered into and ratified by the
employees. (Pantranco North Express v. NLRC, G.R. No. 95940, July 24, 1996).
It appears that these rules still hold true, since RA No. 10911 neither amends nor
repeals the Labor Code other than requiring that there should not be any forcible
early retirement motivated by age discrimination.
Case law provides that, in the hiring, status, and dismissal or retirement of
employees, the burden to prove that there is discrimination is with the applicant
or employee who alleges that he/she is denied privileges or opportunities given
to others under identical or similar conditions. (Caltex [Phil.], Inc. vs. Philippine
Labor Organization, GR No. L-5206, April 29, 1953).
There must be clear proof then that such denial was motivated by bad faith and
discrimination on account of age.
(b) It shall be unlawful for a labor contractor or subcontractor, if any, to refuse to refer for
employment or otherwise discriminate against any individual because of such person's
age.
(c) It shall be unlawful for a labor organization to:
(1) Deny membership to any individual because of such individual's age;
(2) Exclude from its membership any individual because of such individual's age;
or
(3) Cause or attempt to cause an employer to discriminate against an individual

in violation of this Act.
(d) It shall be unlawful for a publisher to print or publish any notice of advertisement
relating to employment suggesting preferences, limitations, specifications, and
discrimination based on age.
3. What are the “Exempted Discriminations”?
The setting of age limitations by employers is allowed under the following

circumstances:
(a) Age is a bona fide occupational qualification (BFOQ) 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.
4. What are the legal bases for BFOQ, if any?
The concept of BFOQ is not new in Philippine labor law. One can say that the test of
reasonableness is parallel to it. For example, in the case Yrasuegui v. Philippine Airlines
Inc. (G.R. No. 168081, 17 October 2008), the Supreme Court upheld the defense of
BFOQ when the airline company dismissed a flight steward whose weight was over the
required set standard for the job. The Court held that the company's weight standards
are reasonable and necessary considering that public policy requires airline companies
to exercise extraordinary diligence for the safety of the passengers especially in case of
emergencies. In another case, the Court upheld the policy of a pharmaceutical company
prohibiting marriage with employees of rival companies because its purpose is to
protect the company's trade secrets and formula from being compromised and
infiltrated (Duncan Association of Detailman-PTGWO v. Glaxo Wellcome Philippines,
Inc., G.R. No. 162994, 17 September 2004).
In order to justify the BFOQ defense, the employer must prove there is “compelling
business necessity for which no alternative exists other than the discriminatory
practice” (Star Paper Corporation v. Simbol, G.R. No. 164774, 12 April
2006). Ultimately, the test of whether the BOFQ defense is valid or not, will depend on
the circumstances, even with the passage of R.A. No. 10911.
5. What is the penalty for violations of the Anti-Age Discrimination in

Employment Act?
Any violation of this Act shall be punished with a fine of not less than fifty thousand
pesos (P50,000.00) but not more than five hundred thousand pesos (P500,000.00), or
imprisonment of not less than three (3) months but not more than two (2) years, or both,
at the discretion of the court. If the offense is committed by a corporation, trust, firm,
partnership or association or other entity, the penalty shall be imposed upon the guilty
officer or officers of such corporation, trust, firm, partnership or association or entity.
 It is a well-settled rule that the determination of qualifications of applicants and

employees for hiring, promoting and dismissing is a management prerogative (NAFLU,
et al. vs. NLRC, GR No. 90739, October 3, 1991). But while such prerogative is inherent
in business enterprises, it is also subject to limitations by law, CBAs and general
principles of fairness and justice. (Norkis Trading Co., Inc., et al. vs. Melvin Gnilo, GR
No. 159730, February 11, 2008). At this instance, the Act serves as a positive
pronouncement for both the employees and employers, that age-based discrimination in
employment is now undeniably unlawful.

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IRR OF R.

A 10911 OR THE “ANTI-AGE DISCRIMINATION IN EMPLOYMENT ACT

1. What is the Anti-Age Discrimination in Employment Act?

2. What are the Prohibited Acts?

(a) It shall be unlawful for an employer to:

When it comes to hiring applicants —

(3) Decline any employment application because of the individual's age;

With regard to the status of an employee —

(5) Deny any employee's or worker's promotion or opportunity for training

In terms of dismissal and retirement of employees —

(c) It shall be unlawful for a labor organization to:

(1) Deny membership to any individual because of such individual's age;

(3) Cause or attempt to cause an employer to discriminate against an individual

3. What are the “Exempted Discriminations”?

The setting of age limitations by employers is allowed under the following

4. What are the legal bases for BFOQ, if any?

5. What is the penalty for violations of the Anti-Age Discrimination in

 It is a well-settled rule that the determination of qualifications of applicants and

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