It is against the law to discriminate against anyone in the workplace because of their actual or assumed age.
Stereotypes and assumptions about young people and mature workers can have a big influence on decisions in the workplace.
Employees are protected from discrimination at all stages of employment including recruitment, in workplace terms and conditions, 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.
Age discrimination in employment can include:
- 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’s assumed that they’ll quickly move on to another job
- not employing mature workers because it’s assumed that they’ll soon retire
- not providing training opportunities for young or mature workers because ‘it’s 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 from happening, rather than just respond to complaints that arise. 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 should put in place changes required to address this.
Examples of age discrimination
Alison is asked her age at a job interview and then refused the position because the employer wants a ‘more mature’ person for the 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 are receiving training on 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 should stick to what he knows.
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:
- 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 where an employer discriminates when it is reasonable to protect the physical, psychological or emotional wellbeing of the children in a person’s care
- hiring a person of a particular age where it is a genuine occupational requirement that a person be of a particular age, for example, in a dramatic or an artistic performance, entertainment, photographic or modelling work, when this is necessary for reasons of authenticity or credibility
- an employer may pay an employee who is under the age of 21 years according to the employee's age
- 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 are discriminated against 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 and the community.
See our resource for mature-age workers and their rights under the Equal Opportunity Act.
Employers may be vicariously liable for their employees’ acts of discrimination or sexual harassment. Employers can also be directly liable. Find out more about who is liable for discrimination and harassment.
Employers also have a positive duty to eliminate discrimination, sexual harassment and victimisation as far as possible.
Complaints of discrimination made to the Commission are resolved through a process called conciliation. Find out more about our process for resolving complaints.