A general age restriction for candidates applying to an educational leadership program for music teachers offered by the Swiss Federal Government violates the constitutional principle of non-discrimination, according to a decision rendered by the Swiss Federal Administrative Court on July 11, 2017.
Despite excellent and long-standing professional experience in leading various music choirs, a 67 year old applicant was not admitted to the educational leadership program. The Federal Government argued that there were many younger candidates who are likely to serve much longer as musical directors, so using tax-payers monies to educate a 67 year old candidate would not be well spent.
The candidate argued that the age restriction infringed the principle of non-discrimination as laid down in Article 8 of the Swiss Federal Constitution, according to which no person may be discriminated - amongst others - on the basis of his age unless a qualified justification exemption exists. In a nutshell, the candidate held that professional competence should in any case prevail over age.
The Federal Administrative Court now shared the candidate's view. The court pointed out that fundamental constitutional rights can only be restrained under strict conditions, what requires in particular a basis in the law. Even though the "age-test" does not pertain to a historically ill-treated or politically excluded group (as it is usually the case with religion, gender or ethnicity discrimination), there is nonetheless a need for a qualified justification to overcome the "praesumptio" of unacceptable discrimination, the judges further held.
According to the Swiss Federal Administrative Court, both the Swiss Federal Constitution and the Swiss Federal Cultural Promotion Act do not contain the admission criterion of age. A related ordinance requires cumulatively a minimum age of 18, a Swiss residence domicile or a Swiss citizenship, and the capability of managing and leading musical courses and camps, which list is conclusive in the court's view. In other words, there are no further admission limitations in the law that would have authorized the federal agency in charge of the educational leadership program to establish any limitation of an upper age.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.