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Age discrimination

Age discrimination

Employees are protected from age discrimination at all employment stages including recruitment, workplace terms and conditions, dismissal, return to work after illness or pregnancy or dismissal and retrenchment. People are also protected from discriminatory advertising that may deter them from applying for a role.

Stereotypes and assumptions can have a big, at times negative, influence on decisions in the workplace.

An age limit may be legally specified in the circumstance where age is shown to be a "bona fide occupational qualification reasonably necessary to the normal operation of the particular business". In practice, BFOQs for age are limited to the obvious (looking for a young actor to play a young character in a movie) or when public safety is at stake (for example, in the case of age limits when recruiting pilots and bus drivers).

The ADEA does not stop an employer from being partial towards an older employee over a younger employee, even when the younger employee is more than 40 years old.

The United States Supreme Court, in Meacham v. Knolls Atomic Power Lab, 554 U.S. 84 (2008), held that the employer and not the employee bears the burden of proving that a layoff or other action that hurts older workers more than others was based not on age but on some other “reasonable factor.”

In Gomez-Perez v. Potter, the Supreme Court allowed federal workers who experience retaliation as a result of reporting age discrimination under the law to sue for damages.

In Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000), the Supreme Court held that state employees cannot sue states for monetary damages under the ADEA in federal court. The EEOC may still enforce the ADEA against states, and state employees may still sue state officials for declaratory and injunctive relief.

Examples of age discrimination

At a job interview, Alison is asked her age and later gets rejected for the position because the employer wants a ‘more mature’ person for that role.

Jim, aged 55, attends a job interview and is asked, ‘What do you want this job for at this late stage of your life?’ His application is unsuccessful.

Eve is employed as a casual employee at a shop. She is made redundant and replaced by a younger person. The manager reveals that he wanted to create a ‘new upbeat feel’ to the shop to attract youthful customers.

Gary notices his younger co-workers at the factory receiving training on the new machinery. When he asks why he has not been invited to the training sessions, Gary’s supervisor tells him he is getting a bit old to learn new tricks and must stick with what he knows.

Age discrimination occurs in part because ageism, to some degree, is tolerated in broader social contexts. Experts previously told this in the HR Dive and hence, made it an "open secret" in employment. Language in job applications asking for "digital natives," for example, may send a signal that older candidates need not apply. Good documentation and training may help employers implement standards to avoid ageist practices.

Age discrimination in employment can include the following

  • Advertising for someone to join a ‘dynamic, young team’
  • Not interviewing someone because they are too young or too old to ‘fit in’ with other staff
  • Not employing younger workers because it is assumed that they will quickly move on to another job
  • Not employing mature workers because it is assumed that they will soon retire
  • Not providing training opportunities for young or mature workers because ‘it is not worth it’
  • Making choices around redundancy, or forcing someone to retire, because of their age.

The positive duty

An employer has a duty to take reasonable measures to prevent discrimination and not just respond to arising complaints. This is called a ‘positive duty’. It means that an employer needs to take proactive steps to eliminate discrimination.

For example, this could mean scanning their environment and considering if recruitment and employment policies and processes unreasonably bar people of certain age groups from being employed or continuing to work. An employer must work around the changes that are required to address this.

Are there any exceptions?

The Equal Opportunity Act includes some exceptions. This means that discrimination may not be against the law in particular circumstances.

For example,

  1. Hiring a person of a particular age to provide domestic or personal services in a person’s home. This may include the care, instruction or supervision of children or personal care services. An example is when someone of a certain age and gender is required to assist a person in their home with toileting, showering, and rehabilitation.

    In a situation like this, an employer discriminates when it is reasonable to protect the physical, psychological or emotional wellbeing of the children in a person’s care.
  2. Hiring a person of a particular age where it is a genuine occupational requirement that a person be of a particular age. Like, in a dramatic or an artistic performance, entertainment, photographic or modeling work, when this is necessary for reasons of authenticity or credibility.
  3. An employer may pay an employee who is under the age of 21 years according to the employee's age.
  4. A person may take a special measure for the purpose of promoting substantive equality for members of a group with a particular attribute. For example, an employer could promote employment of older workers when they can show that older workers within the industry face discrimination and that the measure seeks to address this disadvantage.

Mature-age workers resource

Discrimination against mature age workers is widespread. Mature aged workers commonly complain that they face discrimination because of their age when applying for jobs, overlooked for training or promotion, or pressured into taking redundancy packages or retirement. Age discrimination and compulsory retirement are not only against the law but also bad for business and costly for employers as well as the community.

See our resource for mature-age workers and their rights under the Equal Opportunity Act.

The Age Discrimination in Employment Act of 1967, is a US labor law that forbids employment discrimination against anyone at least 40 years of age in the United States. In 1967, the bill was signed into law by President Lyndon B. Johnson.

The ADEA prevents age discrimination and provides equal employment opportunity under conditions that were not explicitly covered in Title VII of the Civil Rights Act of 1964. It also applies to the standards for pensions and benefits provided by employers and requires that information concerning the needs of older workers be provided to the general public.

Scope of protection

The ADEA includes a broad ban against age discrimination against workers over the age of forty, and also specifically prohibits:

  1. Discrimination in hiring, promotions, wages, and termination of employment and layoffs.
  2. Statements of specifications in age preference or limitations.
  3. Denial of benefits to older employees: an employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing full benefits to younger workers.

Since 1986, it has prohibited mandatory retirement in most sectors, with phased elimination of mandatory retirement for tenured workers, such as college professors, in 1993.

Mandatory retirement based on age is permitted for:

  1. Executives over age 65 in high policy-making positions who are entitled to a pension over a minimum yearly amount.
  2. The ADEA applies to employers who employ at least twenty employees on a regular basis within the current or prior calendar year.

Amendments

The ADEA was amended in 1986, and then again in 1991 by the Older Workers Benefit Protection Act (Pub. L. 101-433) and the Civil Rights Act of 1991 (Pub. L. 102-166).

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