Legal issues affecting older people

Age discrimination is when a person is treated, or proposed to be treated, in an unfavourable way due to their age.

Age discrimination can occur in many areas of public life including:

• employment;
• access to goods and services;
• education;
• accommodation.

Age discrimination can occur directly and indirectly.

Age discrimination is prohibited at both the federal and the state or territory level.

The key legislation relevant to age discrimination are: 

• The Age Discrimination Act 2004 (Cth) (‘Age Discrimination Act’) ensures people are not treated less favourably on the grounds of age, it allows for assistance for people who experience discrimination, and provides exemptions in some areas (e.g. superannuation and health).
• The Equal Opportunity Act 2010 (Vic) (‘EO Act’) makes it unlawful to discriminate against a person for a variety of personal characteristics, including age. Both Acts recognise that age discrimination can occur in two ways: directly or indirectly.
• In Victoria, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) protects the right of every person to recognition and equality before the law.
• The Fair Work Act 2009 (Cth) (‘Fair Work Act’) prevents discrimination against employees.

Under the Age Discrimination Act, direct discrimination occurs when the aggrieved person is treated less favourably than a person of a different age who is in the same (or very similar) circumstances.

That less favourable treatment has to be attributable to something about that aggrieved person’s age – whether it’s an actual characteristic of that person’s age, or a stereotype or an idea that the discriminator has about that age group generally.

Notably, it is enough if the discriminator has simply proposed to treat a person in this way. The treatment does not need to have actually occurred.

The EO Act states the matter more simply: direct discrimination on the basis of age occurs when a person treats or proposes to treat another person unfavourably because of their age.

An example of direct discrimination is if an employer excludes an employee from a new training opportunity at work, and a substantial reason for that decision is the belief that the employee is nearing retirement age. It does not matter whether there was also another reason to exclude the employee: age being a substantial reason for the decision to exclude the employee is age discrimination.

Under the Age Discrimination Act, the age of the person does not need to be the substantial reason for the decision. It is enough that age, or imputations about an age group, is one reason for the decision or proposed decision.

Indirect discrimination occurs more insidiously. It is when there is a rule or practice that seems to apply the same to everyone, but which unfairly disadvantages people of a certain age.

The Australian Human Rights Commission (AHRC) gives the example of an employer who imposes the condition that all employees must pass a physical fitness test, even though fitness is not an inherent requirement of their work. Even though it is true that many older people are perfectly fit, this is in general a rule that would be likely to disadvantage older employees against the young employees.

It is worth noting that the discriminator only has to propose instituting this new requirement to fall foul of indirect discrimination laws.

If a person makes a claim under these laws, it is up to the discriminator to prove that the condition, requirement or practice they imposed was reasonable in the circumstances. For example, they have to prove that it was reasonable to impose a fitness test because the job involves intensive physical activity. Even then, the EO Act specifies that it may not be reasonable if the employer could have made certain adjustments or alternatives that would have allowed for the result sought and would have reduced the disadvantage. 

What is ‘reasonable’ is considered in relation to the nature and extent of the disadvantage caused, the financial circumstances of the person or company imposing the condition, and the cost of imposing an alternative requirement or practice.

The Charter protects the right of every person to recognition and equality before the law, and to enjoy their human rights without discrimination.

The Charter also requires the Victorian Government and public authorities to consider human rights when developing policies, laws, services and when making decisions.

If a person experiences age discrimination in Victoria, and they are unable to resolve the matter through an organisation’s internal procedures, they can make a complaint under either the federal Age Discrimination Act or the Victorian EO Act. 

There is scope for a person to make their complaint under both jurisdictions if they first make it under the federal one. If the age discrimination occurred in the context of work, a person could make a claim under the Fair Work Act as well as the Age Discrimination Act and the EO Act.

How to make a complaint under the Age Discrimination Act

Under the Age Discrimination Act, a person can make a written submission to the Australian Human Rights Commission (AHRC). AHRC investigates complaints and tries to resolve them through conciliation. Outcomes of conciliation can include an apology, reinstatement to a job, compensation, or changes to a policy. 

If a complaint cannot be resolved through AHRC’s process, the complainant may be able to pursue their complaint further in the Federal Court of Australia or in the Federal Circuit and Family Court of Australia. Potential remedies can be found in the Australian Human Rights Commission Act 1986 (Cth). An award of damages is an available remedy, but the court may also order other remedies, which would be agreed upon at conciliation.

How to make a complaint under the Equal Opportunity Act

Under the EO Act, a person can make a complaint to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC). VEOHRC processes complaints with a free and impartial dispute resolution service that centres around conciliation. If a complaint cannot be resolved through conciliation, it may be heard by VCAT.

For more information about discrimination, see Chapter 11.1: Discrimination and human rights.