Mar 11, 2015

You can't teach an old dog new tricks!

Discrimination, in any form, is considered very harshly by the courts. It will be considered unlawful if the discrimination relates to, inter alia: age, sexual orientation, physical features, marital status, race, descent, political or religious beliefs, and disabilities.

For example, discriminating against a woman seeking employment, (because she might still have children in the future) could be construed as unlawful. It stands to reason that questions in the interviewing process may not include any reference to her marital status or her intentions regarding bearing children, or her age.

So what does it mean to discriminate?

Essentially, it is about disadvantaging someone/groups of people, on the basis of an identifiable characteristic, where the remaining group, without that characteristic, are not disadvantaged. It needs to occur in an “area of life”, such as the workplace.

Discrimination can be direct, such as the aforementioned case.

Indirect discrimination, is more subtle and harder to define, because while appearing to treat everyone equally, one group or persons, are being disadvantaged. For example, regarding rental premises, all applicants have to show a proven rental history for a minimum number of years, which, for example, could exclude young people trying to rent their first home/apartment.

Consider the following scenarios and see whether you believe age discrimination was in play:

Scenario 1:

A 60 year old employee, with 25 years’ service, was terminated for reasons of redundancy. The reason for the redundancy was that the employer wished to expand the employee’s role requiring additional duties to be performed. The employee did not have adequate training. On the one hand, the employer argued that the employee was not willing to train. On the other hand, the employee argued that he had been discriminated against, and terminated, because of a belief that because of his age, he would not be able to learn the extra duties the role now required.

Scenario 2:

A full time employee who had worked for a long time at a restaurant at Surfer’s Paradise, was told that when he returned from long service leave, he would only be getting part-time work. Later, he was sent a letter informing him that he would be terminated when he turned 65 since the company did not employ people beyond this age.

Scenario 3:

Two employees apply for a promotion position and the older of the two is successful. The younger employee overhears talk that it was because her manager wanted someone older, who would bring more seriousness to the job. She talks to her manager who confirms that she would be seen as being too young for such a senior position and would not be taken seriously.

I’m sure your instincts were right, and here are the Answers:

Answer 1:

The employer provided no evidence that the employee had not wanted to learn, or was not capable of learning, new duties. It was decided therefore, that the employee should be reinstated and provided with training to perform the additional tasks.

An employee cannot be terminated on the basis of age.

Competence, rather than age, is the only acceptable factor.