Age discrimination in employment: an old, persistent problem

Posted by on Nov 11, 2016

justitia-blog-older-person

Despite Australia’s rapidly aging population, it is increasingly difficult for older Australians to find – and keep – jobs. The former Age Discrimination Commissioner, the Hon Susan Ryan AO, succinctly summed up the conundrum at the launch of the Willing to Work Inquiry (Inquiry) report in March this year: “A recent Australian Bureau of Statistics report showed that most people now expect to work until they are 70: they expect to, they want to, but will they find jobs?”

Though complaints about age discrimination can arise in a large number of areas, the Hon Susan Ryan, AO revealed that in the past year, more than 70% of complaints about age discrimination made to the Australian Human Rights Commission (Commission) concerned the area of employment. It is an astonishing figure, especially when one considers that the Age Discrimination Act 2004 (Cth) (AD Act) prohibits discrimination on the ground of age in a range of areas of public life other than employment, such as education, provision of goods and services, and the administration of federal laws and programs. Moreover, although the AD Act protects people of all ages from discrimination on the ground of age, the Inquiry indicated that age discrimination in the workplace is most likely to be experienced by people over the age of 50, and particularly those over the age of 55.

Dr Alysia Blackham of the University of Melbourne Law School, whose recently published work deals with age discrimination of older workers in the UK, posits that current anti-discrimination laws do not do enough to protect older workers in practice. Many employers with whom Blackham spoke in the course of her research for Extending Working Life for Older Workers: Age Discrimination Law, Policy and Practice (Hart Publishing, 2016) exhibited formal, but not substantive, compliance with age discrimination laws. Blackham states that these employers tended towards an approach focused on “age neutrality”. This might mean there is no explicit bias on the ground of age, but it does not mean workers of all ages are treated equally. Such unequal treatment can manifest in a number of ways, including the questions employers ask of older workers at interview (“Why do you want a job at your age?” “How would you deal with having a younger manager?”).

It can also manifest as assumptions about the kind of work older workers are capable of doing, the amount of leave those workers are likely to take (it is often assumed older workers will require more time off for personal/sick leave) and the length of time older workers are likely to stick around, as they near “retirement age”. Upon examination, of course, these assumptions rarely provide justification for not hiring older workers. Ability to perform a particular type of work, including learning various aspects of that work, comes down to individual ability and a willingness to learn, neither of which is dependent on age. No one can predict how much personal leave a person may take in the future. In addition (and quite apart from the fact that making decisions about whether or not to employ someone because they may take leave they are entitled to take is unlawful), if leave is a concern, then older workers are less likely to take parental leave than younger workers. Lastly, the fact that a person is closer to “retirement age” (a term which has less meaning as more people work into their 70s) has no bearing on the length of time they are likely to stay with an organisation. In fact, the Inquiry suggested that older workers – and those with a disability – are likely to be more loyal to their employers than younger workers without a disability.

Age discrimination at work is damaging to employers and employees. The inability to find work forces older workers into early and involuntary retirement, the financial and psychological implications of which are significant. Even when they do find jobs, the Inquiry heard, older workers experienced feelings of isolation at work and bullying because of their age. To quote the Inquiry report, ‘Several older people experienced sustained, systemic bullying and harassment, with the most common form of bullying involving social exclusion’. This type of treatment can lead to Workcover claims, or claims directly against an employer. Systemic or widespread treatment of this nature is also a likely indicator of poor workplace culture where employees lack respect for one another, fail to collaborate and miss out on learning from one another. Inevitably, this means no one is doing her or his best work.

Age discrimination at work affects everyone, but its presence can be easy to miss. At Justitia, we work with organisations to build capacity around identifying and eliminating discriminatory practices to build healthier, more inclusive workplaces that thrive on diversity. If you would like to know more about training and other services we provide to tackle discrimination, contact us.