Age Discrimination Lawyers

As highlighted by the prevalence of age-based retirement requirements, age discrimination remains a problem in the workplace. Studies have estimated that one-third of employers are reluctant to hire mature aged workers and that over one-quarter of Australians aged 50 years and over had experienced some form of age discrimination in the last two years. In 2017-2018 the Australian Human Rights Commission received 2,046 complaints, 8 per cent of which were lodged under the Age Discrimination Act 2004 (Cth). These statistics are concerning, especially given the increasing life expectancy of Australians.

The Age Discrimination Act 2004 (Cth) provides for two different types of discrimination: direct and indirect. Direct discrimination occurs when one person treats the aggrieved person less favourably than another person in similar circumstances based on their age. A good example of this is age-based retirement requirements. Recently, a landmark case has been commenced alleging that Deloitte Australia’s retirement age of 62 breaches age discrimination laws. Andrew Jewell, a principal at employment law firm McDonald Murholme, said if Mr Brown is successful in his case it could prompt similar claims from partners at other big four firms who impose specific retirement ages. Here, a person who is over the age of 62 is being treated less favourably than someone under the age of 62 because of their age.

Indirect discrimination occurs when a neutral condition, requirement or practise has the effect of disadvantaging those of a similar age to the aggrieved person. For example, a condition that requires an employee to have a high level of dexterity where it is not necessary for the employment may contravene the Age Discrimination Act 2004 (Cth). This is because older people are less likely to have a high level of dexterity compared to younger people. Here, older people are being disadvantaged by their age, even though the condition appears to be neutral on its face.

If you have experienced age discrimination and were not able to resolve the matter with your employers a complaint can be lodged in the Australian Human Rights Commission. Once the complaint is received, the President of the Commission can investigate and try to resolve the dispute by conciliation. If unsuccessful, your claim can be lodged in either the Federal Circuit Court or the Federal Court. The court is able to award remedies such as compensation, an order that the discriminator does not repeat the action, and reinstatement of your position.

The Age Discrimination Act 2004 (Cth) provides for some circumstances that will not constitute age discrimination:

• where the discrimination provides a bona fide benefit to persons of a particular age. For example, the provision of a Seniors Card treats younger people less favourably but is not unlawful discrimination because it is a good faith benefit provided to the elderly;
• The act is intended to meet a need that arises out of a particular age group. For example, young people often have a greater need for welfare services than other people. This means that youth welfare services are not discriminatory against older people;
• The act is intended to reduce the disadvantage experienced by people of a particular age. For example, when a person over the age of 45 is dismissed, they are entitled to one extra week of notice of termination. This is in recognition of the difficulties a person of this age may face in securing suitable alternative employment;
• A certain age is an inherent requirement of the job. A good example of this is the case of Qantas Airways v Christie (1998) 193 CLR 289. In this case, Christie, a 60-year-old international airline pilot was dismissed based on age. However, being below the age of 60 was held to be an inherent requirement of the position because most countries prohibited pilots over the age of 60 from flying in their air space.

If your age discrimination falls into one of these categories, it will not have been unlawful discrimination.