Tuesday, June 09, 2015

Missing the point

My June 9, 2015 column.

Equal employment opportunity is a great and noble concept.  In our heart of hearts, we all want to champion fairness.  The truth, however, is that such a concept is difficult to implement in the Philippines.  The reasons are many and it is sad that our legislators seem to think that it’s only so because industry practices discrimination.     Thus, Senator Pia Cayetano and company have been intermittently crowing about the need to pass the proposed Anti-Age Discrimination in Employment Act of 2013.  Some officials at the local level have bought Cayetano’s advocacy and have started filing resolutions in various city councils urging others to support the bill which seeks to penalize an employer, labor contractor or labor organization for discrimination against any person because of age.  There’s also an online petition that is gaining ground; last I looked, it had more than 5,000 signatories.
The proponents of the measure cite job notices and advertisements that specify age requirement.  They want the practice stopped.  They also want to impose prohibition against requiring candidates to declare age and birth date, declining an application by reason of age, discrimination in terms of compensation, conditions or privileges because of age, etc.  It is tempting to argue that the qualifications specified in job notices are not written in stone, but it is a lot easier to concede the point.  Companies can do without it and I have reason to believe those who do specify age limits and other biographical characteristics do so only out of bad habit, laziness, and to add length to their job ads.  But doing away with age requirements in job notices will not guarantee that the supposed age-based discrimination will no longer be practiced.  Also, the prohibition against requiring candidates to declare age or birth date is funny because that kind of data is very easy to access - all transactions with government from NBI certificates to drivers licenses require that data.  If industry truly wants to exclude certain populations from the employment process, there are many creative ways to do it and unless government wants to police every human resource department in every company in every city, it would be difficult to prove discrimination because of age.  
First of all, there are a lot of business organizations that actually practice equal employment opportunity whenever they can.  The business process outsourcing industry, for one, does not impose age limits among other biographical characteristics.  Second, if and when industry prescribes age limits, it would be for certain entry-level positions because it certainly does not make sense for any business organization to set age limits for supervisory or managerial positions where maturity and experience count.  Why would we want senior people with experience to apply for entry level positions?  Third, like other things in a market economy, jobs are a product of the supply and demand relationship.  There are just more fresh graduates looking for jobs and it can be argued that narrowing qualification standards can help both candidates and employers find each other faster.  All of these, however, can be conceded in the name of better corporate governance.
My main beef with measures such as Cayetano’s latest wrinkle is that it is simplistic.  It is accusatory and automatically implies wrongdoing on the part of industry.  For example, why limit the accusation to industry and leave out the biggest employer of all - which is government?  It would be foolhardy for anyone to assume that government agencies do not set age limits.  Worse, it completely misses the whole point by about a mile.  By legislating that age should not be a factor for employment anymore, are we in effect saying retirement, and the prescribed retirement age, are already irrelevant?  If we are to ban discrimination against age in the hiring process, would it not be discriminatory as well to force people to retire at the government mandated cut-off age?  We must change the retirement law.  And heavens, shouldn’t we also talk about discrimination against people who are not yet of legal age? 
Just to be clear, we will join Senator Cayetano anytime, anywhere in her quest for a more tolerant workplace.  We will jump loops with her to push for measures that celebrate diversity and harness the distinct and unique contributions that different types of people bring to the workplace.  
There is however the more important issues, which Cayetano and company choose to gloss over.  And this is that there is a context around the supposed discriminatory practice of industry. 
There is a dearth of scientific bases to convince everyone that age and certain biographical characteristics associated with youth and consequently, physical capabilities, are no longer relevant today.  Government must drive the empirical studies that will justify the movement. We must build the science that will create the principles and practices - only then can we have a compelling reason to lift age limits in both hiring and retirement. So perhaps our senators can fund those studies.     
Passing a law that scolds and punishes industry and people for supposedly practicing discrimination is a half-baked idea in the face of the utter absence of structures that will support such a measure.  There are quite a number of statutory guidelines that make it prohibitive for companies to hire “older people”, even insurance companies have the law on their side for not allowing medical cover for senior employees, or in worst cases, tripling premiums.  Lets’ call a spade a dirty shovel - there are differences in physical abilities between a 20-year old and a 45-year old guy.  Arguing that older workers should be given less strenuous, less hazardous jobs defeats the whole idea of fighting for anti-discrimination because positive discrimination is still discrimination.  The solution is to automate most processes so that there will be less manual and physical jobs, but the shift in technology needs to be put in place first; remember that it took us decades to put in place facilities to make it possible for people with disabilities to come to work.  In short, if we want industry to revise its qualifications standards, we must revise the laws that make it difficult to do it and build the structures that would support the change.  And we’re not yet talking about the costs to industry!
What is clear is the problem is larger than discrimination.  Discrimination does not exist in a vacuum.  Anyone who wants to change the behavior of ducks in a pond must first of all study the pond before forcing ducks to learn to swim underwater.

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