Age discrimination

Age discrimination occurs when a person is treated less favourably, or not given the same opportunities as others in a similar situation, because he or she is considered to be too old or too young.

The Age Discrimination Act 2004 (ADA) prohibits discrimination in employment on the basis of age. It applies to young and older workers alike.

The ADA also protects younger and older Australians from discrimination in other areas of public life, including education; getting or using services; or renting or buying a house or unit.

In addition, the ADA makes it unlawful to harass or bully another person because of his or her age.

Employees and potential employees

The ADA makes it unlawful to discriminate on the basis of age:

• when advertising jobs
• during recruitment and selection processes
•  when making decisions about training, transfer and promotion opportunities and 
• in the terms, conditions and termination of employment.

Stereotypes about young people and mature workers can greatly influence decisions made during recruitment and in the workplace.

Examples of age discrimination could include:

• not employing certain people because they won’t ‘fit in’ with other employees because of their age
• not employing younger workers because of assumptions that they will quickly move on to another job
• advertising a position for someone aged ‘under 30’ to join a ‘dynamic, young team’
• making choices around redundancy, or forcing someone to retire, because of his or her age, or
• harassing or bullying a person because of his or her age.

All types of employers and employment relationships are covered under the ADA, including: Commonwealth Government employees, state government employees and private sector employees; full-time, part-time and casual employees; contract workers and commission agents; as well as apprentices, trainees and those on probation.

It also covers recruitment processes organised through recruitment and employment agencies.

Customers

The ADA makes it unlawful to discriminate against people on the basis of age in the provision of goods and services, such as banking and insurance services; services provided by government departments; transport or telecommunication services; professional services, such as those provided by lawyers, doctors or tradespeople; and services provided by restaurants, shops or entertainment venues.

This means that it is against the law for a provider of goods or services to:

• refuse to provide a person with goods, services and facilities
• provide them with goods, services and facilities on less favourable terms and conditions, or
• provide the goods, services and facilities in an unfair manner

because of his or her age.

For example, it would be discriminatory for a real estate agent to refuse to rent a house to two 19-year-old university students because ‘they might damage the property by partying too hard’.

Direct and indirect discrimination

Discrimination can be direct or indirect.

Direct discrimination

Direct discrimination happens when a person is treated less favourably because of his or her age than a person of another age would be treated in the same or similar circumstances.

For example, it could be direct age discrimination if a person is selected for redundancy simply because of his or her age.

Indirect discrimination

Indirect discrimination can be less obvious. It can happen when employers or service providers put in place conditions, requirements or practices which appear to treat everyone the same but which actually disadvantage some people because of their age. It will be discriminatory if it:

• applies to everyone, and
• a large number of people of a certain age can comply or are able to comply with it

but

• other people, or even just one other person, do not or are not able to comply, and
• it is unreasonable in all of the circumstances.

For example, it could be indirect discrimination if an employer requires an older person to meet a physical fitness test, which more young people are able to meet, if that fitness standard is not necessary for the job in question.

When discrimination is not unlawful

Like other anti-discrimination laws the ADA says that, in some circumstances, treating someone differently because of his or her age in employment or in the provision of services is not against the law. This is known as an exception.

Exceptions in the ADA include:

• things done in compliance with Commonwealth laws, including laws about taxation, social security, superannuation, insurance and migration
• things done in compliance with state and territory laws
• certain health and employment programs, or
• youth wages or direct compliance with industrial agreements and awards.

For example, as a person must be over 18 years old to work in a bar, it would not be discrimination if a bar owner refused to employ a person because he or she was under 18 years.

Under the ADA, it is not unlawful for an organisation to advertise for, employ and pay a person as a junior up to the age of 21. It is against the law, however, to dismiss a person from employment because they turn 21.

In addition, voluntary work and domestic duties in private households are not covered under the law.

Positive discrimination

The ADA also says that it is not against the law to provide a genuine benefit to people of a particular age group or to do something that helps meet an identified need for people of a certain age group.

For example, ‘positive discrimination’ may include discounts and concessions provided to older Australians using a Seniors Card and special accommodation assistance provided to homeless teenagers.

Meeting the inherent requirements of the job

It is not against the law to refuse someone a job if, because of their age, he or she can’t perform the ‘inherent requirements’ of the position. In other words, a person must be able to carry out the essential duties of the job.

For example, a young person may not be able to meet the inherent requirements of a courier job if they are not yet eligible for a driver’s licence.

Employers’ obligations

Employers have a legal responsibility to take all reasonable steps to prevent age discrimination.

'Reasonable steps' may include putting in place policies and procedures to create a discrimination-free environment. It could also include procedures to deal with allegations of discrimination and harassment made by employees or customers.

It is against the law to victimise a person for making, or proposing to make, a complaint to the Australian Human Rights Commission about age discrimination.

Employers can also be held legally responsible for discrimination or harassment by their employees. For more information, see the Vicarious Liability Fact Sheet.

Useful links

• Age discrimination, Good Practice, Good Business PDF (992 KB)
• Age discrimination, Good Practice, Good Business Word (120 KB)
• Employing and retaining older workers
• Quick guide for Employer's on discrimination law

These documents provide general information only on the subject matter covered. It is not intended, nor should it be relied on, as a substitute for legal or other professional advice. If required, it is recommended that the reader obtain independent legal advice. The information contained in these documents may be amended from time to time.