Ageism

Most writing on ageism is imported, and it assumes a legal framework India does not have. The United States prohibits age discrimination against workers over forty through the Age Discrimination in Employment Act. The United Kingdom makes age a protected characteristic under the Equality Act. The European Union requires member states to prohibit it. India has done none of this for the private sector.

There is no general anti-discrimination employment statute in India covering the private sector, and age is not among the grounds that the targeted statutes protect. The practical consequences are visible in any Indian job portal: adverts specifying a maximum age, campus programmes restricted by graduation year, and internal policies that limit certain roles or promotions by age. None of that is unlawful here on age grounds alone.

Employers arriving from jurisdictions where this is serious legal exposure often assume the same rules apply and are told by local recruiters that they do not. Both are partly right, and the useful answer is that the legal risk is low while the commercial and reputational risk is real and rising.

The most common counter-argument is that the Constitution guarantees equality, so age discrimination must be unlawful. That argument does not work against a private employer, and it is worth understanding why.

• The equality guarantee and the guarantee of equality of opportunity in public employment are enforceable against the State. A private company is not the State, and is generally not amenable to writ jurisdiction on that basis.
• The prohibition on discrimination that does reach private conduct is narrow, directed at access to shops, public restaurants, hotels and places of public entertainment and to public wells, tanks and roads. It is not a general employment provision.
• Public sector employment, public sector undertakings and bodies that qualify as the State or as instrumentalities of the State are in a different position, and age rules there can be challenged as arbitrary.

So the constitutional route is real for government and public sector employment and largely unavailable against a private employer. This is the single most misunderstood point in the area, and it is why an entry that simply says ageism is discrimination and discrimination is prohibited misleads an Indian reader.

The proxy point deserves emphasis. India does prohibit discrimination on several grounds by statute: sex in relation to wages and recruitment for the same or similar work, disability, HIV status, and gender identity, with sexual harassment governed by its own law. Where an age rule is in substance a rule about one of those characteristics, the absence of an age statute does not help. A policy that excludes candidates over a certain age from a role because of assumed physical capacity is a disability question waiting to be asked.

In most Indian organisations the real age issue is not hiring bias but retirement, and the answer surprises people: there is no general statutory retirement age for private sector employment.

• Retirement age is set by the contract of employment, by certified standing orders where they apply, or by a policy incorporated into the terms. If none of these fixes it, there may be no retirement age at all, and the employer cannot simply impose one later.
• Standing orders, where certified, are the strongest basis, and they bind both sides. Changing them follows the certification process rather than an internal announcement.
• Applying a retirement age selectively, retaining some employees past it and not others, undermines the rule and looks like the real reason for the exit was something else.
• Re-engagement after retirement, on consultancy or fixed-term terms, needs to be genuinely what it says. A retired employee doing the same job under the same control is likely still an employee, with the statutory consequences that carries.
• Retirement interacts with provident fund and pension eligibility and with gratuity, so the date has consequences beyond the exit itself.

Verify the retirement age position against the applicable standing orders and state rules, since the industrial employment framework and its state variations govern this and have moved into the Industrial Relations Code.

The absence of a statute is a poor reason to run age-based selection, and the trend is against it.

1. Drop age bars from adverts unless there is a genuine requirement, such as a statutory minimum age or a defined apprenticeship or trainee scheme. They narrow the pool and they are the first thing quoted back in a public complaint.
2. Write the requirement instead of the proxy. If the role needs a level of experience, state the experience. Age is a poor instrument for what is usually being asked.
3. Fix retirement age in the contract or standing orders, state it clearly at hiring, and apply it consistently. Most disputes here are contract disputes, not discrimination disputes.
4. Keep selection records. Where an age-based decision is later characterised as something else, the contemporaneous reason is the defence.
5. Apply the group standard where a multinational operates one. Nothing prevents a company holding itself to a higher standard than Indian law requires, and a global policy that quietly exempts India is difficult to explain.

Treat the legal position as the floor. It is a low floor, and it is not where a serious employer should be standing.