Mature Workers:
3. Employers Guide to Age Discrimination
Age discrimination most commonly occurs in the workplace.
Stereotypes about mature workers can greatly influence the decisions that employers make in recruitment, promotion, training, retirement and redundancy.
Taking steps to tackle age discrimination can help you attract, motivate and retain good staff. It also enhances your reputation as an employer.
On other hand, there can be significant costs and disruption for employers who don’t come to grips with the issue.
Getting to know your responsibilities as an employer under the Age Discrimination Act makes good sense.
- What is discrimination?
- What does the ADA do?
- What are my responsibilities
- How are
discrimination complaints resolved?
3.1 What is discrimination?
Age discrimination happens when someone is treated unfairly or denied an opportunity because of their age. Discrimination can be direct or indirect.
Direct discrimination occurs when a person is treated less favourably because of their age than someone in another age group would be treated in the same situation.
For example, it could be direct age discrimination if a person is not employed in an office job because it is assumed that, because of his age, he wouldn’t have the ability to learn new computer skills.
Indirect discrimination occurs when there is a rule or policy that is the same for everyone but which has an unfair effect on people of a particular age.
For example, it could be indirect discrimination if a job ad asks for 10 years experience if this isn’t necessary to do the job properly. This could mean that younger workers with the right skills aren’t considered for the job or don’t apply.
Making the workplace a discrimination-free zone
Discrimination and harassment in the workplace can be costly on many levels. It can hurt individuals, cause disruptions to work and undermine staff morale.
As an employer, you have a legal responsibility to ensure that your workplace is free from discrimination and harassment.
Gerhardt, 57, had only recently been employed when two younger colleagues started harassing him. They would call him ‘decrepit’ and ran a betting competition about his age. The harassment went on for a couple of years. Gerhardt became depressed, his work performance suffered and he was eventually dismissed.
More information
Download the information sheet: What is discrimination and harassment?
3.2 What does the ADA do?
The Age Discrimination Act (the ADA) is a federal law. That means it applies to everyone in Australia.
It protects people from age discrimination in many areas of life, such as getting an education, renting or buying a place, using services or going to public places.
It also protects people from unfair treatment at work.
Workplace discrimination can occur when decisions are made about:
- who gets interviewed and selected for a job
- terms, conditions and benefits offered as part of the job
- who receives training and what sort of training is offered
- who is considered and selected for transfer,
promotion, retrenchment or dismissal.
Who does it cover?
The ADA covers all types of employers and employment relationships, including the private sector, Commonwealth and State Governments, charities and associations, as well as contract and commission based work, and recruitment and employment agencies.
It applies to all types of employees – apprentices and trainees, staff on probation, casual and permanent employees, and part time and full time workers.
Voluntary work and domestic duties in private households are not covered by the law.
What if someone can’t do the job?
It is not against the law to overlook or dismiss someone for a position if they can’t perform the ‘inherent requirements’ of the job because of their age. As an employer you need to work out what are the essential things that a person has to be able to do in the job.
What about youth wages and awards?
The ADA says that there are some situations where it is not unlawful to make distinctions on the basis of age. For employers, this includes the payment of youth wages or complying with industrial agreements and awards.
More information
Download the information sheet: Age discrimination
3.3 What are my responsibilities?
As an employer you have a legal responsibility to prevent discrimination and harassment from occurring in your workplace.
Discrimination can happen when decisions are made about recruitment, training, promotion, terms and conditions, redundancy and dismissal.
Discrimination and harassment can also occur in the day-to-day workplace environment. It can happen between staff or between staff and supervisors. It can include one-off incidents, repeated bullying or it can be the result of the general workplace culture.
The Age Discrimination Act (the ADA) – like other federal anti-discrimination laws dealing with sex, race and disability – says that an employer must take ‘all reasonable steps’ to prevent discrimination from happening at work or in connection with a person’s employment. This is called ‘vicarious liability’
The ADA does not give a definition of ‘reasonable steps’. It will vary between workplaces – what is ‘reasonable’ for a large company will be different for a small business.
However, the key point is that every employer must take steps to prevent or resolve incidents of discrimination in the workplace.
Following are some practical guides to help you tackle workplace discrimination and harassment:
- Recruitment and selection
- Anti-discrimination policies
- Handling complaints
- Creating
a productive workplace
More information
Download the information sheet: What is vicarious liability?
3.4 How are discrimination complaints resolved?
If a person feels they have been discriminated against they can make a complaint to the Australian Human Rights Commission (the Commission).
Our complaint handling service is free, informal and impartial. We have strong track record in helping people to settle their complaints quickly and fairly.
The Commission’s role is to investigate the complaint and, where necessary, attempt to resolve the issue through an informal process known as ‘conciliation’.
Some complaints can be settled by talking with people over the phone or by exchanging letters or emails. In other cases the parties might come together for a conciliation meeting.
A conciliation meeting is not like going to court. You don’t need a lawyer and you don’t have to prove or disprove what happened.
The aim of conciliation is to give all the parties involved an opportunity to express their point of view, talk through the issues and settle the matter on their own terms.
The Commission doesn’t take sides. Our role is to help people understand the issues, answer questions about the law and suggest possible ways to resolve the complaint.
What sort of outcome can I expect?
We deal with lots of complaints and they all get settled differently, depending on the issues involved.
However, agreements can include an apology, reinstatement to a job, compensation for lost wages, changes to a rule or putting in place anti-discrimination policies.
Read examples of age discrimination complaints that the Commission has helped to resolve.
More information
3.4.1 Age discrimination – complaint case studies
Following is a selection of case studies of conciliated complaints of age discrimination.
Other case studies of complaints conciliated by the Commission are available in our conciliation register
Gary – made redundant
Gary, 61, worked for a small automotive company that was taken over by new management. He claimed he was told before the takeover that he would not be offered a position because of his age and other reasons.
A few months into the new management his position was made redundant – he was told the decision was made on a “last one in, first one out” basis. When Gary mentioned that another employee had started after him, he was told this person would not be made redundant as he was younger and had a more important job.
The company denied age was a factor in Gary’s redundancy. It said the decision was based on business needs and performance issues. The complaint was resolved through conciliation, with the company agreeing to pay Gary $2,500 in general damages.
Jenny – dismissed
Jenny, 54, was employed by a small retail firm as a full-time sales assistant. She was dismissed after the business was taken over by a new owner. She claimed this was because she was “too expensive to keep on”. Soon after Jenny’s dismissal the company advertised for a full time junior sales assistant. The company denied age was a factor in Jenny’s dismissal.
The Commission held phone discussions with Jenny and the company. The company agreed to pay her three weeks wages as compensation.
Richard – application not accepted
Richard, 55, applied through an employment agency for a graduate IT position with a large government department. Despite having worked for the department for ten years and having over 30 years relevant experience, his application was rejected. Richard claimed the employment agency told him that he shouldn’t be applying for graduate positions.
The employment agency denied discriminating against Richard and claimed his application had been rejected because of a mistaken understanding that he was already employed with the department at that time.
The complaint was resolved at a conciliation meeting. The employment agency agreed to pay Richard $2,000 in general damages and contribute $4,500 towards the legal costs he had incurred.
Helen – discriminatory advertising
Helen, 48, was registered on an electronic job matching register. A real estate agency had placed an ad for a receptionist and the information as sent on to Helen. It was a position that she was well qualified to do, however, the ad asked for a well presented ‘younger’ applicant.
Helen contacted the Commission and claimed the ad discriminated against her. We contacted the real estate agency to discuss the matter. They complaint was resolved with the real estate agency providing an apology to Helen.
