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Why do we not care about age discrimination?

29/10/2020

Age discrimination is illegal in Australia, save for some limited exceptions, and has been for a long time. However, while the law is clear-cut, age discrimination seems to remain more acceptable than other forms of discrimination. This is true even though the retirement age is being increased, governments are encouraging employees to work longer, and many people will need to work longer to fund retirement.

The Age Discrimination Act 2004 and Fair Work Act 2009 make age discrimination in employment illegal in Australia and the protection is duplicated in Victoria in the Equal Opportunity Act 2010. While the prohibition on discrimination is clear it is generally accepted that employment prospects diminish as people get older and that employees are ‘moved on’ as they get older.

Other forms of discrimination, such as pregnancy or injury discrimination, still exist in employment however are more generally rejected by society. But for some reason we seem to accept age discrimination.

One reason may be that there is an assumption that aptitude diminishes with age. If there is a reduced ability to perform a role, such as for a pilot over the age of 70, then discrimination is not considered unlawful, however assumption extends to circumstances where there is no evidence of a reduced capacity.

Another possible reason that age discrimination is considered more acceptable is that the attribute is ubiquitous and inevitable – everyone has an age and everyone’s age gets more advanced. This can be contrasted with other forms of discrimination which can only apply to smaller and distinct sections of the population. However, the fact that age is a ubiquitous attribute and advanced age is inevitable means age discrimination has the potential to be more widespread and therefore the protection should be taken more seriously, not less.

A related issue is that age discrimination is very hard to prove, both from a legal but also a general sense. As everyone has an age there is no distinct point at which the attribute is possessed (as opposed to say pregnancy or injury) so it is harder to point to the attribute as a causal factor in when suffering detriment. Employers rarely make specific reference to age (however it does still happen) so employees are left with inferential arguments when asserting that they have suffered age discrimination.

While age discrimination is widespread, seemingly accepted, and difficult to prove, it is not logical. Discrimination law intends to protect people with attributes that might otherwise mean they are more likely to be treated less favourably, however the desire not to hire older employees or to ‘move on’ older employees does not make commercial sense.

The first and most obvious argument in favour of older employees is the experience, both in an industry but also in a particular employer. Having a workforce with diverse experience adds value as updated technical skills are balanced with experience to create the best combination. Further, culture is important for employers and the contribution of more experienced employees cannot always be measured with just output as the leadership, mentoring and general care may not be able to be replicated in a more junior replacement.

The second, and more commercially relevant, argument is that, somewhat paradoxically, older employees are more likely to remain in employment. Employees closer to the start of their career are more likely to be ambitious and require promotions and pay rises or they will seek opportunities elsewhere and it is not uncommon for younger employees to change jobs every 2-3 years. However, if an employee is hired closer to the end of their career that person is more likely to wish to remain with the same employer and perhaps in the same job without progression and therefore more likely to stay for longer term.

Unfortunately there is no simple solution to the problem of age discrimination however it must came at both ends of the spectrum – we needs Courts to be more willing to make findings of age discrimination so employers are more wary, and we need employers to move away from the culture of favouring against older employees who can provide unique value.