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  • Writer's pictureLynn Elsey

Age Discrimination at Work: An Age-Old Issue

Updated: Jan 17, 2020

One of the most common but least talked about forms of discrimination has enormous costs for society as well as the targeted individuals, LYNN ELSEY finds.

Global job recruitment site paints a disheartening picture about the fate of workers over 50, illustrated by the following comments from workers facing what has been

called “the last acceptable form of discrimination”.

“I met with a recruiter this week. After getting through the look of disappointment when she saw how old I am she told me that many of their requests are for ‘a recent college graduate because they haven’t developed bad habits yet’.”

“If I am willing to work for entry-level wages, why wouldn’t you want my years of experience?”

“I am sick of hearing older workers haven’t kept up with technology. I have been through MS-DOS, the many variations of Windows ... Word, Excel, and on and on. Eachtime I have had to learn and adapt. Give me a break.”

“Trying to prove age discrimination from a legal perspective is virtually impossible unless a hiring person blurts it out – ‘you’re too old, and because of that we’re not hiring you’.”

No wonder mature job seekers have learned to remove all dates from their resumés, limit their job history to roles from the past 10 years and do their best to appear “youthful”, making every effort to appeal to potential employers when faced with the situations similar to those noted above.

Those fortunate enough to have jobs can find their career prospects stymied. They can be passed over for promotions or training opportunities, and their younger colleagues often consider them incapable of taking on new challenges.

In 2016, one in seven Australians was aged 65 and over, yet just 14 per cent of that age group was working, according to the Australian Bureau of Statistics. This means a large pool of experienced, knowledgeable workers with proven skills is going to waste.

At the same time, plummeting birth rates and longer life spans are causing a collective wringing of hands across most modern economies, as employers wonder where they can find people to fill their job vacancies.

This pending demographic time bomb makes it difficult to comprehend how anyone could exclude or sideline a core group of capable employees from the workforce. Nonetheless,

the Australian Human Rights Commission, in the 2016 Willing to Work report, found that more than a quarter of Australians over the age of 50 have experienced age discrimination in the workplace in the past two years.

Along with offering proven skills and knowledge, mature workers are frequently noted for having more job stability and long-term commitment than millennials, who tend to move jobs frequently, according to US employment lawyer Lori Rassas, author of Over the Hill but not the Cliff.

Instead of hiring and retaining more seasoned workers, studies show that employers are pushing aside older workers – or at least shutting them out. And when it comes to the all-important diversity quotas, people over the age of 45 rarely get a mention.

Quantifying the problem

A 2017 study by the University of South Australia, Work Well, Retire Well, found that people over the age of 55 have more trouble getting a job, taking an average of 68 weeks compared to those aged 25 to 54 (49 weeks) and those aged 15 to 24 (30 weeks).

Close to half the subjects in this study (44.1 per cent) encountered negative assumptions about their skills, learning ability or cognition based on their age, and a similar number (41.6 per cent) found their age made it difficult to get an interview or find work. Furthermore, 37.9 per cent reported that they were offered limited or no opportunities for promotion or training due to their age.

“Workers also faced patronising attitudes, where employers or colleagues assumed they would struggle to pick up new technology or work systems quickly, due to their age,” the study authors said. The research also found that people as young as 45 could experience this ageist treatment.

“Too many people are shut out of work because of underlying assumptions, stereotypes or myths associated with their age,” wrote Susan Ryan, then Age and Disability Discrimination Commissioner, in the foreword to the Commission’s Willing to Work inquiry in 2016. “These beliefs lead to discriminatory behaviours during recruitment, in the workplace and in decisions about training, promotion and retirement.”

From an economic perspective, discriminating against workers over the age of 50 is a

staggering waste of money. According to the Willing to Work report, a 7 per cent increase in participation among the mature-age labour force would increase Australia’s 2022 gross domestic product by about $25 billion.

What about the law?

The 2016 Urbis National Profile of Solicitors report shows the average age of solicitors has been moving slowly upwards to its current 42.4 years, up from 41.8 in 2011. Solicitors aged 65 and older have been the fastest growing group – a 23 per cent increase since 2011 – and now represent one in 12 solicitors.

"People are making decisions based on wrong assumptions. Law firms should be having honest conversations around this." -- PETER BUTLER

However, although lawyers are trending older, promotions and partnerships appear to be heading in the other direction.

The Australian Financial Review’s 2016 Law Partnership Survey, for example, found that partnerships are being handed to younger lawyers rather than their more mature colleagues. Most appointments went to those aged 36 to 40 – an increase from 19 per cent to 36 per cent over the past year – with a corresponding drop in positions going to those aged 41 to 45.

Peter Butler AM, a partner and former managing partner at Herbert Smith Freehills (HSF), says the question – “why are there so few people over the age of 55 in law?” – is one that needs to be raised.

“People are making decisions based on wrong assumptions, such as the assumption that older people are lacking in energy and drive or that they have lost interest in what is a very demanding profession,” Butler says. “This may be quite wrong.

“Law firms should be having honest conversations around this. A case in point is the late Professor Bob Baxt AO. At a time when his peers were retiring, he joined us as a partner and then emeritus partner. He became an integral part of our competition practice and continued contributing to the profession and wider business community for many years. He not only had learning and wisdom, but passion and drive as well.”

Danielle Kelly, HSF’s Head of Diversity and Inclusion, agrees: “Age isn’t a conversation we’ve had enough of.”

Countering misconceptions

Including and supporting more seasoned workers can give employers access to crucial experience, skills and knowledge. It’s an opportunity BMW discovered firsthand.

In 2007, the German car giant faced what it perceived as a challenge to remaining competitive in the marketplace: an ageing workforce. For years, as it searched for technological leadership and improved productivity, the company had viewed the increasing age of its workforce as a problem rather than a solution.

But three managers at one of its Bavarian plants decided to eschew tradition and invited

a team of older workers to get involved in developing new work procedures. As a result, productivity increased by 7 per cent in one year, absenteeism dropped by half, and the product defect rate fell to zero.

The program was so successful that BMW now celebrates the project as a model for productivity and has rolled out similar projects in other plants.

A new study from the College of Law adds further evidence to the misconception that older workers are unable or unwilling to take on new methods and technology. It found that 60 per cent of mature-age law students were excited about technological disruption; only 3 per cent reported feeling daunted by it.

“Many of these aspiring lawyers come from industries that have already experienced wide-ranging disruption, such as the banking and health sectors,” says Ann-Maree David, Executive Director of the College. “Many will be choosing to leave their existing field of expertise and enter the legal profession because they know there will be opportunities whenever an industry is disrupted.”

Uncovering discrimination

A common justification for not recruiting older workers is that they aren’t interested in taking on a more junior role or they only want to work part-time. With this in mind, a team of researchers at the Federal Reserve Bank of San Francisco decided to see if there was any justification for these assumptions, and created an experiment to rule out factors other than age that could explain hiring practices.

This study, Age Discrimination and Hiring of Older Workers, involved submitting more than 40,000 fictitious but realistic résumés and applications for more than 13,000 jobs across the US. It found that older applicants had a 47 per cent lower chance of gaining a first-stage interview than applicants aged 29 to 31.

On the gender front, men fared much better than their female counterparts. The researchers suggested that the variation between men and women was because employers focus on physical appearance, referring to an earlier study that found “the effects of ageing on physical appearance are evaluated more harshly for women than for men”.

Age discrimination, like other types of discrimination, can be hard to prove. An EY study commissioned by the Australian Human Rights Commission in April 2016 found that age discrimination in Australia usually occurs in:

  • recruiting, where older candidates are unable to get an interview or secure a position;

  • pigeonholing, where older workers become stuck or constrained in a role;

  • structural practice, where older workers are targeted for redundancy or restructuring, and training programs have age limits; or

  • discriminatory culture or management practices, where older employees are perceived to be lacking “the hunger to progress”; less enthusiastic and energetic than their younger counterparts; closed- minded and inflexible; and unable to embrace ideas of change and new technology.

The study noted that the discrimination was often subtle and indirect. For example, an employer might lose interest in a job candidate once their age became apparent and older workers might be subject to comments from other colleagues – often made in jest – that they are old or out of touch.

Many older workers either put up with the situation or move on. Few make formal complaints, believing it would be difficult to prove and fearing they might be deemed a “troublemaker”.

Recruitment professionals tread carefully around the topic of age discrimination. Jason

Elias, director of Elias Recruitment, says he hasn’t noticed any “overt” discrimination from employers.

“Most of our clients are law firms and are aware of discrimination provisions and pretty compliant,” he says. “We have had a couple of firms make requests based on gender and ethnicity and we have decided not to work for them. On occasion, some employers have selected junior lawyers who may be in their first career over more mature-age graduates coming into law later. This may be for a variety of reasons and I can’t categorically say that age is a factor.”

To avoid bias and improve their chances with potential employers, some recruiters advise older clients to “dress youthfully”, avoid discussing roles that aren’t recent, and refrain from providing any information that shows they are more experienced than the interviewer, especially when the interviewer is significantly younger than the candidate.

AARP – a powerful lobby group for older Americans – made a submission to the US Equal Employment Opportunity Commission in 2017, highlighting common ways employers are getting around US rules that prohibit asking a candidate’s age. These include:

  • specifying a maximum number of years of expertise for a role;

  • restricting recruitment for entry-level roles to university campuses, and requiring applicants to have a college-affiliated email address;

  • requiring candidates to be “digital natives”, only accepting those who grew up using technology rather than those who learned to use it later in life; and

  • using online job sites and forms that require applicants to include their date of birth and graduation dates in mandatory fields.

According to Australian Age Discrimination Commissioner Kay Patterson, the wave of baby boomers entering the twilight phase of their careers is raising the curtain on age discrimination in the workplace.

“They are healthier, living longer and have enlightened business understanding, which means they are aware of the advantages that older people can have in the workplace,” she says. “They recognise that it doesn’t make sense to ignore them.”

Fighting back

Google is currently facing a US-based class action lawsuit regarding age discrimination. The case started with one plaintiff in 2015 and at the end of 2017 included 270 people aged 40 and above, who claimed the tech company actively discriminated against job applicants. (The US Age Discrimination in Employment Act bars employers from discriminating against applicants and workers who are aged 40 and over.) The tech industry’s reputation for favouring youth over experience, regardless of the legality, is no secret. According to US marketing firm Statista, in 2016 the average age at Google was 30 – and it was 28 at Facebook; 29 at LinkedIn; and 31 at Apple, Amazon and Yahoo.

But these complaints and lawsuits related to ageing aren’t restricted to the tech industry. Another disgruntled American job seeker recently launched a lawsuit against PwC, claiming the global accounting giant has a policy of only recruiting millennials from college campuses to fill its entry-level jobs. According to Reuters and PwC, the average age of PwC workers is 27, and two-thirds of workers are in their 20s and 30s, although the median age of accountants and auditors overall is 43. Reuters also notes that Facebook settled an age discrimination case in 2013, in relation to job ads that specifically sought recent college graduates.

Finding solutions

According to Kay Patterson, education is key to addressing many age discrimination issues in the workplace.

“I think we need to introduce gerontology into education,” she says. “There are a lot of incorrect myths about older people”. Increased exposure to older workers would also help younger workers better understand the positive elements that more mature workers can add to the workplace, she says.

Patterson says young recruiters who are reluctant to consider older candidates need to take some of the blame for discrimination. As she puts it: “Why wouldn’t you hire someone who is willing to do a job they are over-skilled for?”

On the other side of the Pacific, AARP, boasting its mission to “Disrupt Aging”, thinks that engaging in an array of activities is the way forward. These include documenting the business case for recruiting and retaining older workers and creating a national program that directs job seekers to employers that have pledged to give workers aged over 50 a level playing field.

However, as the organisation said in its submission to the US Equal Employment Opportunity Commission, “these activities supplement, but are no substitute for, strong legal protections against age discrimination in the workplace, and enforcement of those protections”.

The Australian Human Rights Commission says all Australians need to take responsibility for fighting age discrimination. The Willing to Work report offers the following suggestions for managers and business owners.

  • Create a specific company policy outlining what ageism is and why it’s unacceptable.

  • Ensure your leadership team understands this policy and agrees about how important it is.

  • Review your hiring and candidate screening process to ensure there is no room for age-based biases (never request a date of birth in your application form, for example).

  • Acknowledge any stereotypes you might believe about mature-aged workers and challenge their validity.

  • Provide training and progression opportunities for staff based purely on merit, not age.

Providing an environment where mature workers can participate and thrive in the workplace can reap rewards for individuals, businesses and society. Some Australian law firms are responding to the changing needs of their more senior partners and staff members by having them transition into consultant roles that include more flexible work hours and allow them to add value in key areas of expertise.

The ARC Centre of Excellence in Population Ageing Research and the Centre for Research on Ageing Health and Wellbeing recently conducted a study (Australasian Journal on Ageing, Oct 2017, Gong and Kendig) involving people aged 45 to 64. The research found that: “Workforce transitions at mature ages are complex and particularly important because mature age workforce participation will have a major bearing on Australia’s productivity and fiscal sustainability, as well as personal wellbeing and financial capacities.”


Originally published in the April 2018 edition of the NSW Law Society Journal.

NSW Law Society Journal, April 2018

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