I. Purpose
Previously, the ‘Promotion of Employment of Older Workers Act’ contained articles prohibiting discrimination against older workers at time of recruitment, employment and when considering dismissals, but there were no penal provisions. Revision of this Act has introduced general guidelines regarding age discrimination, such as a general prohibition of age discrimination, exceptions, correction orders, fines for negligence, etc. The name of the Act was also changed to ‘Prohibition of Age Discrimination in Employment, and Promotion of Employment of Older Workers Act.”
Employers shall not discriminate against an employee based on age, without a justifiable reason, for each of the following: 1) recruitment and employment; 2) provision of wages and valuables aside from wages, and benefits packages; 3) education and training; 4) disposition, change of position and promotion; and 5) retirement and dismissal. If application of a standard aside from age, without justifiable reason, leads to a result particularly unfavorable to a certain age group, this shall be considered age discrimination. This Act shall apply to any workplace where an employer intends to hire, or has hired, one employee or more, and so this Act covers all legally employable age levels.

II. Major Points
1. Concept of age discrimination
Age discrimination means that a certain person (or a group to which an employee belongs) under similar circumstances creates disadvantages for a person (or a group) of a different age.
2. Justifiable reason
The Act is violated when said person or group is discriminated against without justifiable reason. The concept of ‘reasonable’ as general criteria of judgment to permit or prohibit discrimination shall be interpreted strictly. Namely, the difference (discrimination) of treatment due to age 1) shall be implemented to accomplish a justifiable purpose (justification of purpose). Being important under the corresponding circumstances can be interpreted as a ‘justifiable’ purpose. The treatment of discrimination 2) shall be unavoidable (necessity of method). If it is possible to accomplish its purpose by using a reasonable method aside from age (if there is a reasonable alternative), using “necessity of method” as a defense is hard to justify. And 3) the principle of comparison between purpose and method shall be applied. In this case, it shall be appropriate to choose a certain age group to be disadvantaged if it is chosen according to the principle of comparison between purpose and method.
3. Direct discrimination
Actions where employers discriminate based on age without justifiable reason belong to direct discrimination. Discriminating ‘based on age’ means that the reason for the discrimination is the ‘biological’ age of a certain person (or a certain group), and disadvantageous treatment applies to an employee (or group of employees) according to whether or not he/she/they have reached a particular age, whether an employee belongs to a group of a particular age or not, and relative difference in age.
4. Indirect discrimination
Indirect discrimination is when a standard is used, aside from age (namely, neutral standard), to disadvantage a certain group or employee. Even though it seems non-discriminative externally, in practical terms, it leads to a result particularly unfavorable to a certain age group (namely, a disadvantage of some sort). So, indirect discrimination occurs when application of a neutral standard is not justifiable. Indirect discrimination also occurs when “a certain age group is treated unfavorably compared to another age group, and this judgment of ‘disadvantage in result’ shall require a comparison between definable age groups.
6. Examples of age discrimination at each level of employment
(1) Recruitment and employment
A typical type of age discrimination occurring in recruitment and employment is to limit applicants’ ages (particularly maximum age) or to prefer a particular age group.
- Age limit in open applications for recruitment of 9th grade civil servants
- Age limit in applications for recruitment of female crew of domestic airline companies (Age limit of 25 or younger)
- Age limit in applications for recruitment of university employees (Age limit of 40 or younger)
- Age limit in open applications for recruitment of teachers (Age limit of 40 or younger)
(2) Wages, valuables aside from wages, and benefits packages
Actions where employers discriminate between ages for determining wages, other valuables and benefits packages for people in similar positions, belong to direct discrimination. However, in cases where difference in number of service years reflects different job skills, degrees of responsibility, or difference in performance, and in cases where it is necessary to promote longer service, wage discrimination determined by the number of service years is not regarded as age discrimination and is accepted as reasonable discrimination.
(3) Education and training
Employees shall be given equal opportunity for education and training, without discrimination based on age, as they are important methods to develop job skills and are closely related to human resource management and compensation. In selecting eligible employees for various education and training opportunities, like overseas training, if the employer excludes a certain age group based on age without objective and reasonable criteria, this action would fall under age discrimination.
(4) Disposition, changes of position and promotion
The employer usually chooses eligible employees for disposition, changes of position, and promotion by considering various factors, such as job skills, organizational efficiency, teamwork, sense of responsibility, etc. Therefore, the employer’s discretion to evaluate and select eligible employees shall be respected, but if the employer, in evaluating and selecting these employees, disadvantages a certain employee or group based on age, this age discrimination is prohibited as an abuse of the employer’s discretion. In cases where the employer does not provide opportunity or applies disadvantageous conditions to a certain age group, without justifiable reason, in management of personnel disposition, promotion, etc., and in cases where a certain age group was collectively disposed to or transferred to disadvantageous jobs, or in cases where younger employees were treated preferentially, when compared to more eligible older employees, such acts are considered age discrimination. If there is a remarkable statistic difference between different age groups, discrimination can be suspected.
(5) Retirement and dismissal
When an employer establishes criteria to dismiss a certain group of employees due to their advanced age, without considering other factors like job skills, performance, etc. in the process of employment adjustment, this action falls under age discrimination because the employer dismissed employees due to age. Where there is a close relation between service period and wages in the seniority-based salary system, dismissing employees simply because they have been employed a long time, and therefore receive high wages, will be considered indirect age discrimination.
6. Exceptions to prohibition of age discrimination
(1) In cases where a certain age group is inevitably required in consideration of the characteristics of related duties
※ Example: set age limit for an applicant who shall carry out a young man’s role in a drama or movie
(2) In cases where there is a difference in the continuous service period, a reasonable difference in wages, or money and valuables, and benefits packages aside from wages is appropriate.
(3) In cases where the retirement ag