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Age Discrimination [2003] KRNHRC 35 (1 May 2003)

Age discrimination refers to any act of depriving persons of opportunities or unfavorable
treatment on the basis of age. These are acts of unfavorable treatment of a particular person
on the basis of age without reasonable grounds in employment; supply or use of goods,
services, transportation, and residential facilities etc.; and use of educational facilities or
vocational training institutions. The Commission investigated cases about discriminatory acts
on the grounds of age and provided remedial measures as follows:
In May 2003, the complainant filed a petition with the Commission against the Minister
of Education and Human Resources Development stating, "It is in violation of the right to
equality to limit the age of applicants for the teacher licensing test to 40 years old or younger".
Article 11-2 of the Education Officials Appointment Act states, "An applicant for open
screening (teacher appointment test) under Paragraph 1, Article 11 of the Education
Officials Appointment Act should be 40 years old or younger in the year when the first test
is to be taken. However, the head of the open screening organ may disregard the age if
there are special circumstances, such as an urgent need fill a vacancy or need for a person
with career experience in a special field".

In the process of investigation, the Ministry of Education and Human Resources
Development maintained that
(1) the limit on the age of applicants was set after considering physical health and ability
to master the assigned job;
(2) the age limit is necessary to ensure timely advancement and availability teachers;
(3) it is necessary to secure teachers who are committed to teaching at younger ages; and
(4) a teacher's performance is greatly improved by long experience in teaching and training. Forming
strong relationships with students especially requires long experience; and
(5) if there was no limit on age, many applicants would spend years taking the teachers appointment test
repeatedly, which would be an inefficient use of national labor resources. The Commission
also found that
(6) the age limit was set at 40 after considering the age limit for applicants for state examinations
for ordinary public officers and that the retirement age for teachers was 62; but
(7) the law stipulated that the age limit might be disregarded in special
circumstances. Accordingly, the minister said that the age limit was not in violation of the
right to equality.

The Commission concluded that
(1) to consider only those under 40 years as having the physical strength needed to perform duties
as teachers is nonsensical;
(2) the capability of a teacher should already be proved through teachers licensing procedures and the teachers
appointment screening test, rather than on the basis of age; and
(3) ensuring timely advancement and adequate availability of teachers can hardly be seen as rational as to
exclude those who are above a certain age.

The Commission issued a recommendation to the Minister of Education and Human
Resources Development to the effect that Article 11-2 of the Public Educational Officers
Appointment Act be amended as it violated the rights to equality provided by Article 11 of
the Constitution, given all the reasons as follows:
(1) Teachers are in charge of the special profession called education. The duties, social status,
and characteristics of the organization of teachers are different from other types of public
officials including ordinary public officials.
(2) Those who already acquired teachers' licenses can apply for the Teachers
Appointment Test. Cultivation and appointment procedures for teachers are special.
(3) Those who acquired teachers' licenses at age of 40 or older have many years ahead to work
as teachers, and if they have the will and capability to work as teachers, they should be
guaranteed opportunities to take the test.
(4) Although Article 11-2 of the Educational Officers Appointment Act stipulates that the age
limit be extended in special circumstances, this proviso applies to the appointment test for
elementary school teachers in certain regions where there are often shortages of teachers,
which means that the 40-year age limit applies in reality.
(5) In other countries including the US and UK, there is no such age limit on hiring of teachers.