Age thresholds and the definition of the ‘older worker’ in EU and Italian employment law: Intergenerational justice from a legal perspective

Abstract

This article examines intergenerational justice from a legal perspective by focusing on employment regulation and by addressing a preliminary question: how the legally relevant category of the ‘older worker’ is constructed in legal systems in which age operates both as a protected ground and as a recurrent regulatory criterion. Within the EU multilevel framework, the analysis draws on Directive 2000/78/EC - particularly Article 6 - and the case law of the Court of Justice of the European Union to show that EU equality law does not establish a single, fixed age marker for identifying who qualifies as an older worker, but instead bases age-based differentiation around justification requirements and structured proportionality review. Building on this premise, the article turns to Italy as a case study, reconstructing the statutory age criteria and eligibility conditions through which labour and social security rules allocate opportunities, duties and protection, and shape pathways of retention and exit across the working life cycle. Intergenerational justice is understood here as fairness between age groups coexisting in the workforce. The core question is whether the resulting regulatory architecture produces a balanced allocation of opportunities, burdens and protections across age positions, not only in distributive terms, but also in terms of relational equality and the legal conditions for quality work across the life course. In this sense, the article argues that intergenerational balance cannot be inferred from resource distribution alone, since working conditions and legal entitlements may enable or constrain longer working lives and shape older workers’ willingness and capacity to remain in employment. On this basis, the article seeks to clarify the legal notion of the ‘older worker’, with two main objectives: first, to use it as an analytical lens through which to assess age-based regulation in labour law; and second, to frame it as a category that may be necessary for shaping a more balanced regulation of the labour market and the employment relationship in light of the changing age composition of the workforce.