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Mature Workers: 3. Employers Guide to Age Discrimination

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.

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:

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

Conciliation
– how it works

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.