Know your rights: Age discrimination

There are five generations in the workforce together now, but not all are treated equally. Age discrimination is a common problem that can occur at work or during the job application process, when employers make assumptions about your knowledge or ability based on how old you are.

Over the age of 50? You’re not the ‘right fit’ for a youth-focused employment brand. Under the age of 25? You’re not quite mature enough for a management role. These are just a couple of examples of age-based assumptions.

Not only are they wrong, they can also count as discrimination – and it’s important to know that you’re protected by New Zealand law.

What does age discrimination look like?

Age discrimination does not only affect older workers. Dilshen Dahanayake, a solicitor at MinterEllisonRuddWatts in Auckland says it is present in many age-diverse workforces.

“On the one hand, older generations can face discriminatory views that they cannot adapt to new technology or ways of working, while younger generations may, in some situations, be unfairly treated as inexperienced or unknowledgeable,” he says.

While age discrimination can occur at work, Dahanayake it can also happen during job interviews.

“In situations where a person’s age is not a genuine occupational qualification for the role, it could be unlawfully discriminatory to ask how old they are during a job interview,” he says.

How are you protected?

If you’re qualified for a job and over the age of 16, an employer cannot discriminate against you because of your age. This applies to all aspects of employment – from recruitment and selection to pay, conditions, training and promotion.

Dahanayake explains that New Zealand’s Human Rights Act 1993 prohibits discrimination on several grounds, including age. This means an employer can’t refuse to employ you, or give you less favourable terms of employment or job opportunities because of your age. They also can’t terminate your employment or cause you to resign.

“It is also unlawful for recruiters to treat job seekers differently from other job seekers based on a prohibited ground of discrimination,” says Dahanayake.

Employers also can’t use an application form or ask any questions of job applicants that may indicate an intention to unlawfully discriminate against them. For example, they can’t ask when you’re planning to retire, or when you’re planning to take parental leave.

However, Dahanayake adds that there are certain situations under the Human Rights Act where discrimination based on age will be lawful.

“For example, differential treatment based on age is lawful where being of a particular age is a genuine occupational qualification of the role,” he says.

An example of this is requiring you to be a certain age for a particular job – such as serving alcohol in a bar or joining the police force. There are also some occupations where the retirement age is written into law. This applies to judges and coroners, for instance.

What can you do about it?

If you think you’ve experienced age discrimination at work or during a job hunt, Dahanayake says a first step may be to speak to the organisation’s HR team, if there is one, about your concerns.

If you don’t feel comfortable with this step, Dahanayake says you can lodge a claim with the Human Rights Commission or Employment Relations Authority.

But you’ll need to decide which one of these forums you’d like to bring your claim in, he adds. “Under the Employment Relations Act 2000, complainants cannot bring the same claim in both forums."

“For general advice about discrimination in the workplace, the Commission will be the best place to go,” says Dahanayake.

Everyone is entitled to equal treatment and opportunity in the workplace, regardless of their age. If you think have been discriminated against, you have a right to speak to your employer about it or to lodge a claim with the appropriate authority. Remember that your workplace rights are protected by law, no matter how old you are.

Information provided in this article is general only and it does not constitute legal advice and should not be relied upon as such. SEEK provides no warranty as to its accuracy, reliability or completeness. Before taking any course of action related to this article you should make your own inquiries and seek independent advice (including the appropriate legal advice) on whether it is suitable for your circumstances.