nal survey on age discrimination in the workplace and found that while over a quarter of Australian workers aged 50 and above had experienced some form of discrimination, more than 40% of them did not take any action in response, and only a very small proportion made formal age discrimination complaints.
What claims are most common and what are the trickiest issues for employers?
Over the last five years, approximately 60% of age discrimination complaints to the AHRC have been in the area of employment. Approximately a quarter of complaints are in relation to the provision of goods, services and facilities.
Under the FW Act General Protections Provisions, a challenging issue for employers is that they carry a ‘reverse onus’. This means that where an employee alleges that he or she has suffered adverse action for a prohibited reason (i.e. age), the court will presume that this is the case unless the employer can prove otherwise. For example, if an employee alleges that they were not recruited because of their age, the employer must prove that age had no part in the decision not to recruit that employee.
A reverse onus of proof also applies in unlawful termination cases. The employer must, by leading evidence, exclude the possibility that termination occurred because of the employee’s age. Several decisions in this area establish that the employer must ‘eliminate the prospect’ that the termination was effected by a prohibited reason (i.e. age).
Another significant issue for employers is vicarious liability. Under the AD Act, where the unlawful conduct is done by one person on behalf of an employer (for example, by an employee), the employer may be vicariously liable for the conduct and orders may be made against the employer.
The employer will be able to defend an allegation of vicarious liability if it can establish that it took reasonable precautions and exercised due diligence to avoid the unlawful conduct occurring.
An additional difficulty facing employers is the potential for discrimination tribunals to accept statistical evidence when considering whether discrimination has occurred. In Virgin Blue Airlines Pty Ltd v Stewart & Ors (2007) EOC 93-457, flight attendants complained that Virgin discriminated against them on the ground of age in their job application selection process. The process included testing for ‘behavioural competencies’, one of which was described as having ‘Virgin flair’ (i.e. making the flying experience fun for the customer). The Queensland Anti-Discrimination Tribunal examined statistical evidence of Virgin’s competency-based selection results and found that they were not age-neutral, as only one employee over 35 (aged 36) had ever been hired. The tribunal concluded on this basis that Virgin’s recruitment process was discriminatory. The decision was upheld by the Queensland Supreme Court: Virgin Blue Airlines Pty Ltd v Hopper & Ors  QSC 75.
Are there any specific exceptions in your law?
Not all discrimination on the basis of age is unlawful. There are a number of areas of exception under the AD Act, including:
· Employment for domestic duties in private households;
· Superannuation, insurance and credit;
· Migration and citizenship;
· Pensions, allowances and benefits;
· Some health programmes;
· Certain acts of religious and voluntary organisations;
· Compliance with specified laws (for example, occupational health and safety legislation);
· Youth wages or compliance with industrial agreements and awards; and
· Positive discrimination (for example, discrimination in the provision of education or health services which provide a bona fide benefit to persons disadvantaged on the grounds of age).
In addition, under the AD Act a significant exemption is available in respect of discrimination in employment. It is not unlawful to refuse to employ a person, or to terminate a person’s employment if they are unable to perform the ‘inherent requirements’ of the particular job because of their age. This exemption only applies to recruitment and termination of employment. Accordingly, during the employment