Age Discrimination

The Age Discrimination Act 2004 (ADA) prohibits discrimination against persons on the basis of their age in a range of contexts. The Act prohibits age discrimination in employment, education, access to premises, the provision of goods and services, accommodation, land and the administration of Commonwealth laws and programs. This article outlines the law surrounding age discrimination in Australia.

What is age discrimination?

Under the ADA, age discrimination can be direct or indirect.

Section 14 defines direct age discrimination as the treatment or proposed treatment of a person in a less favourable way than they would treat a person of a different age in circumstances that are not materially different and where the discriminator does so because of the age of the aggrieved person or because of a characteristic that appertains or is imputed to a person of their age.

Section 15 defines indirect age discrimination as imposing conditions, requirements or practices that are not reasonable in the circumstances and are likely to disadvantage persons of a particular age.

Employment

Section 18 of the ADA prohibits age discrimination in employment. An employer must not discriminate based on age when determining:

• the arrangements made for determining who should be offered employment;
• who should be offered employment;
• the terms or conditions on which employment is offered.

Employers must not discriminate based on age by dismissing an employee, denying them access to opportunities for training, transfer or promotion, dismissing the employee or subjecting them to any other detriment.

Employers must take reasonable steps to prevent age discrimination from occurring. This may include putting into place policies and procedures to ensure a discrimination-free working environment.

Goods and services

Section 28 of the ADA makes it unlawful to discriminate against a person based on their age:

• by refusing to provide them with good, services or facilities;
• in the terms or conditions on which goods, services or facilities are provided;
• in the manner in which goods, services or facilities are made available.

Accommodation

Section 29 of the ADA makes it unlawful to discriminate against a person based on their age:

• by refusing the person accommodation;
• in the terms or conditions on which accommodation is offered;
• by de-prioritising the person’s application for accommodation.

A person must not be evicted from accommodation, refused or limited access to any benefit associated with accommodation or subjected to any other detriment in relation to accommodation because of their age.

Exemptions

There are, however, a number of exemptions set out in the ADA. These are situations where discrimination on the basis of age is not unlawful. Some of these exemptions are summarised below.

Positive discrimination

It is not unlawful to discriminate on the basis of age under legislation that provides a benefit to persons of a particular age. For example, it is not unlawful to provide a discount for holders of senior’s cards.

Youth wage

It is not unlawful to discriminate against workers who are aged under 21 by paying them a youth wage. However, it is unlawful to dismiss a worker because they reach the age of 21.

Charities

It is not unlawful to provide assistance or benefits to persons of a particular age as part of the work of a registered charity.

Compliance with laws

It is not unlawful to discriminate based on age in compliance with state, territory or commonwealth laws. For example, it is not unlawful discrimination for an employer to refuse to hire bar staff who are below the age of 18.

Inherent requirements of the job

It is not unlawful discrimination for an employer to refuse to hire a person because they are unable to carry out the inherent requirements of the job, even where this is because of their age. A worker must be able to carry out the essential duties of the job.

Complaint to Human Rights Commission

Complaints about unlawful age discrimination can be made to the Australian Human Rights Commission (AHRC). Complaints must be made in writing and can be submitted online or by post or fax. The complaint must set out what happened, where it happened and who was involved.

The AHRC can investigate the complaint and try to resolve it through conciliation. If the complaint is not resolved through conciliation, it can be taken to the Federal Court of Australia.

It is unlawful to victimise a person for making or proposing to make an age discrimination complaint to the AHRC.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.