Age Discrimination

The Age Discrimination Act 2004 (Cth) (the ADA) is a relatively new arrival in Commonwealth discrimination law. There have been limited cases brought before the courts, and they represent a small percentage of complaints brought to the attention of the AHRC. The purposes of the Act are to raise community awareness that people of all ages have the same fundamental rights and equality before the law, and to eliminate discrimination on the basis of age as far as is possible in the areas specified in the Act (s3, ADA).

Age discrimination legislation is directed at promoting the rights of the young and the old. The Australian Human Rights Commission (AHRC) provides a comprehensive discussion of the Age Discrimination Act.

What is age discrimination?

Age discrimination can be both direct or indirect. Under section 5 of the ADA, ‘age’ includes ‘age group’, which can refer to such categories as ‘teenagers’ or ‘grey nomads’. This allows for a wider application of the Act, as it takes into account the stereotyping of age groups as opposed to people of a particular set age. An example would be ‘teenagers are irresponsible and unsuitable for full-time work’ or ‘older women are unattractive, and so not suitable for hospitality work’.

Age discrimination is less favourable treatment because of ‘a characteristic that is generally imputed to persons of the age of the aggrieved person’ (s14, ADA). The Act defines direct age discrimination as treatment where:

• the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or not materially different, the discriminator treats or would treat a person of a different age; and
• the discriminator does so because of:
  (i)  the age of the aggrieved person; or
  (ii) a characteristic that appertains generally to persons of the age of  the aggrieved person; or
  (iii) a characteristic that is generally imputed to persons of the age of the aggrieved person.

For example, an applicant before the Federal Court complained of discrimination in reduced and altered working hours. The applicant claimed these changes were based on her age, as a new manager at the bar was heard to want younger female bar staff for their appearance and alleged greater appeal to patrons. The applicant argued that this amounted to direct and indirect discrimination on the basis of the applicant’s age, as it typified her older age group as less attractive than people in a younger age group. Although her claim was unsuccessful this would amount to age discrimination if the specific circumstances of non-discriminatory practices in the case were not present.

Indirect discrimination is defined under section 15 of the ADA and is substantially similar to the provision in the Sex Discrimination Act 1984 (Cth) (SDA):

“For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of age of the aggrieved person if:

• the discriminator imposes, or proposes to impose, a condition, requirement or practice; and
• the condition, requirement or practice is not reasonable in the circumstances; and
• the condition, requirement or practice has, or is likely to have, the effect of disadvantaging persons of the same age as the aggrieved person.

For the purposes of paragraph 1(b), the burden of proving that the condition, requirement or practice is reasonable in the circumstances lies on the discriminator.”

So, indirect discrimination is the imposition of a condition, requirement or practice that unreasonably excludes a person and disadvantages people of that age group.

Two or more reasons – homogeneity in the Commonwealth Discrimination Acts

As with the SDA (s8), the Racial Discrimination Act 1975 (Cth) (RDA) (s18) and the Disability Discrimination Act1992 (Cth) (DDA) (s10), under the ADA, if an act is done for two or more reasons, and one of those reasons arose from a discriminatory ground, the act is taken to be done because of the discriminatory reason – here, the age of the person, whether or not it was the dominant or substantial reason for doing the act (s16).

When does the ADA apply?

The ADA applies in the following areas:

• work (ss18-25);
• accommodation (s29);
• access to premises (s27);
• education (s26);
• access to goods, services and facilities (s28);
• land (s30);
• the administration of Commonwealth laws and programs (s31); and
• requests for information on which age might be based (s32).

Whether or not there is employment discrimination is determined by assessing a set of factors that must be taken into account. These are:

• the person’s past training, qualifications and experience relevant to the particular employment;
• if the person is already employed by the employer – the person’s performance as an employee; and
• all  other  relevant factors that it is reasonable to take into account.

This is the ‘inherent requirements’ exemption, which allows for the necessary skills and qualifications that may be required by a job to be the focus in choosing employment candidates.

Generally, the ADA seeks to prevent the denial of services or discriminatory treatment on the basis of age. For example, not allowing an older person to enter a nightclub on the basis of their age could contravene section 27 as it is refusing access to premises that the public or a section of the public is entitled to enter or use, and could contravene section 28 as the nightclub is providing goods or services or facilities, and being discriminatory in doing so.

Exemptions

Exemptions under the ADA include:

• positive discrimination;
• youth wages (s25);
• superannuation, insurance and credit;
• health;
• charities, religious and voluntary bodies;
• migration and citizenship; and
• exemptions relating to direct compliance with laws and orders of courts.

Positive discrimination is permitted insofar as it is intended to benefit a particular age group, such as discounts available for people with a Senior Citizens card. Although extending a discount only to holders of such a card (and that particular age group) discriminates against other age groups, it positively discriminates in another age group’s favour.

Making a Complaint

See AHRC Complaint Process.