Age discrimination in the world of work: examples

Types of discrimination

The ban on discrimination is established by Art. 3 Labor Code of the Russian Federation. This concept means an unjustified refusal to conclude an employment contract if a citizen belongs to one of the following categories:

In Russia, the following types of discrimination are considered the most common:

• Age.
• Racial-national.
• Due to pregnancy.

Thus, discrimination is a restriction of employment rights caused by personal preferences of management that are contrary to the law, if the personal qualities and professional skills of a potential employee correspond to the position for which he is applying .

Discrimination in hiring

The reasons why it is prohibited to refuse employment are listed in Art. Labor Code of the Russian Federation. In particular, most often citizens who are looking for work have to deal with the following:

• Age of applicants – in this case, young professionals or people of pre-retirement or retirement age are at risk;
• The presence or absence of children, suspicions of an imminent pregnancy in a woman, marital status of employees;
• Skin color, nationality of the citizen who is looking for work, his religious beliefs, membership in certain social groups.

Thus, discrimination in hiring is the employer’s refusal to hire a specialist for a reason that is subjectively negative for the employer and, in his opinion, may interfere with the performance of job duties, but does not relate to the business qualities of the applicant.

The employer must remember that even in the job description there should be no signs that limit the rights of applicants. That is, the employer cannot indicate in the job description the candidate’s preferred age, gender (however, in this case there are exceptions), belonging to a particular race, or certain health requirements - all this violates the equality of opportunity of candidates. For indicating any limiting conditions in the description of a vacant position, employers are subject to administrative liability: for the organization, the fine will be from 10 to 15 thousand rubles.

What is not discrimination?

Some specialties have age restrictions. For example, you can only join the Police until you are 35 years old, and this is stated in paragraph 1, paragraph 3 of Art. 17 Federal Law “On service in the Department of Internal Affairs of the Russian Federation”. This is not discrimination, because work in the ATS system requires high physical fitness and length of service. If a citizen over 35 years of age were employed, he would not have enough length of service to qualify for a pension.

Example:

The age limit for employees of the Ministry of Internal Affairs in ranks below colonel is limited to 50 years, but can be extended for another 5 years. The required length of service for a pension is 20 years. 35+20 = 55 years – age of leaving service. If a citizen gets a job after 35 years of age, he will not have enough experience to assign pension payments.

There is another situation that is often perceived as gender discrimination - military service. Often girls are denied a contract due to the lack of female positions, and this is legal, because the list of jobs that can be performed by the fair sex is approved by the Order of the Minister of Defense. The restrictions are related to the different physical abilities of men and women, so they should not be mistaken for discrimination.

What other cases are not considered a violation of the law on the part of the employer:

• Refusal of a potential employee from the procedure for obtaining access to information representing state secrets, if on the basis of this the manager decided not to enter into a contract.
• Failure to undergo a medical examination by an employee, if a medical examination is mandatory for employment.
• Refusal to provide information about property if a citizen is applying for a state or municipal position where the employer’s possession of such data is mandatory.

Discrimination can be committed through thoughtlessness

Employers do not always discriminate deliberately; it often occurs through negligence and ignorance. First of all, it manifests itself in the establishment of different conditions for assigning bonuses , additional payments, etc. to employees of the same category.
For example, in the wage regulations, the employer provided additional payment to women for child care benefits. And when a man with a child applied for such an additional payment, he was refused. The court considered this to be a manifestation of discrimination, since men and women have equal rights, and the right to receive child care benefits is also granted to men (fathers, guardians). Under such circumstances, the contested provisions of the employer's local regulations (LNA) are discriminatory. In another case, an employee was deprived of a bonus for the period worked only because he quit of his own free will. True, there is an opposite example - the Appeal ruling of the Nizhny Novgorod Regional Court dated April 10, 2018 in case No. 33-3694/2018 . And in the third dispute, the court found the conditions of the LNA, which lower “bonus” points for an employee being on sick leave, discriminatory.

If employees have the same performance indicators, then selective bonuses are undesirable.

In general, it is dangerous to give bonuses only to selected employees if they and those deprived of bonuses have the same performance indicators ( Appeal ruling of the Investigative Committee for civil cases of the Khabarovsk Regional Court dated January 16, 2015 in case No. 33-117/2015 ), and for employees of the same level with the same labor function to establish different conditions for the appointment of incentive payments ( Appeal ruling of the Omsk Regional Court dated August 20, 2014 in case No. 33-5259/2014 ).
The court also recognizes as discriminatory the increase in wages only for workers of a certain category, for example, those who were not laid off, if the salaries of those who were “hit” remain the same ( Cassation ruling of the Khabarovsk Regional Court dated October 7, 2011 in case No. 33-7279 ), and the payment of financial assistance only to members trade union ( Appeal ruling of the Supreme Court of the Komi Republic dated June 20, 2013 in case No. 33-3285/2013 ).

“Belittling” of part-time workers is also common - they are deprived of the right to receive payments that “main” employees receive ( Appeal ruling of the RF Armed Forces dated 04/06/2016 No. 2-APG16-2 ).

LNA should not be discriminatory and infringe on the rights of workers by abolishing or reducing the guarantees enshrined in labor legislation.

In second place in terms of the number of violations in this area is an incorrect understanding of the scope of the employer’s “legislative” powers and the establishment of working conditions that contradict federal legislation. The employer has the right, within its competence, to issue and adopt labor regulations ( Articles 5 , 8 of the Labor Code of the Russian Federation ), but they should not be discriminatory and infringe on the rights of employees in comparison with what is provided for by labor legislation. For example, the court found the conditions of the LNA to be discriminatory that the day of discovery of a disciplinary offense is the day of listening to recordings of the registrar of official conversations, since this allows the employer to act arbitrarily and puts employees in an unequal position - depending on the discretion of the employer. Conditions are created for discrimination ( Appeal ruling of the Supreme Court of the Republic of Khakassia dated 06/09/2015 in case No. 33-1546/2015 ). In this dispute, the employer would have avoided claims if he had established a clear procedure, terms and criteria for monitoring employees in the LNA (for example, determined when and how recordings were listened to, limited the period for identifying misconduct).

What grounds for refusing employment do not constitute discrimination?

The only grounds on which managers can reasonably refuse employment to citizens and not be suspected of discrimination is a discrepancy in personal or business qualities.

Business qualities are the applicant’s ability to perform certain functions in accordance with his education and qualifications, confirmed by documents. If they do not meet the requirements for the position, the employer may refuse to issue an employment contract.

Examples of non-compliance:

• A citizen has a degree in economics, but wants to become a lawyer.
• The applicant has received a legal education and wants to work as a lawyer without having two years of work experience (to acquire lawyer status, 2 years of work in a legal specialty are required, Article 9 of the Federal Law “On Advocacy...”).

Personal qualities should be understood as the state of psychological and physical health, as well as endurance, communication skills, stress resistance, creativity, and responsibility. In fact, they can be noticed in an employee only during the probationary period, but if he claims that he does not have stress resistance, and the position implies the presence of such a trait, the employer has the right to refuse employment.

Citizens' guarantees

The Labor Code of the Russian Federation prohibits unlawful refusal to conclude an employment contract with an employee. Otherwise, the official is obliged to inform the employee of the reason for the refusal in writing. However, not all personnel officers issue a document that can be used to apply to the judicial authorities. In this regard, many employees submit this requirement in writing by mail.

Such actions will allow you to prove that the appeal was sent to the employer and was ignored by him. If the refusal is proven in court on a discriminatory basis, the employer will be obliged to enter into a formal employment contract with the employee.

Most common mistakes

Mistake #1. If a teenager under the age of majority is denied employment, this is considered age discrimination.

In most cases, employers employ citizens over 18 years of age, but to perform light labor that does not cause harm to health, persons under 16 years of age may be hired if they have the written consent of their parents (Article 63 of the Labor Code of the Russian Federation). When a vacant position involves age restrictions and education, refusal to hire a teenager is justified.

Mistake #2. The employer has the right to refuse employment to a pensioner, because he already has a source of income - pension payments.

No, that's not true. If age restrictions are not established by law and no special requirements are imposed on the employee, he cannot be refused employment due to retirement age.

FAQ

Question No. 1. What to do if the employer refuses to provide a written refusal?

It will be problematic to prove violations on his part, but it is possible if you record a conversation with him on a voice recorder and go to court about it. Previously, audio recordings were not included in direct evidence, but now they are used to prove guilt or innocence.

Question No. 2. The head of one of the departments of the Ministry of Internal Affairs refuses to employ a woman when there are vacant positions for women. Explanation: “We don’t hire girls.” What to do?

There is only one way out - to file a complaint against the actions of the head of the unit to the head of the city or regional police department.

Manifestations of discrimination

Experts note that 50% of job advertisements are discriminatory. The most common unlawful claims are based on age, length of service and gender. Some advertisements specify requirements for appearance and even zodiac sign. Recruitment agencies should reject such advertisements and inform employers of the rules of existing legislation. In practice, agencies limit themselves only to a remark that they are not responsible for the content of such request advertisements. However, the employer may be held liable for such advertisements because they constitute evidence of age discrimination at work.

There are other widespread violations that candidates for office can use when going to court. This is conducting various tests that use questions that are not related to professional competence. Violations include undergoing a medical examination at your own expense, providing documents not required by law, and much more. Some applicants were refused work due to their lack of registration. This practice has become widespread in Moscow and other large cities.