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Research Report: The legal needs of older people
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The legal needs of older people  ( 2004 )  Cite this report

Ch 7. Discrimination



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Studies on age discrimination


A number of studies have been undertaken on age discrimination: however, these tend to focus squarely on age discrimination in the area of employment. For example, the Australian Bureau of Statistics (ABS) has reported on a longitudinal survey, the Survey of Employment and Unemployment Patterns (SEUP), which tracked the jobseeking efforts and outcomes of a sample of jobseekers over a three-year period.20 While ‘older jobseekers’ (those aged between 45 and 59), 21 showed a relatively low unemployment rate of five per cent, they experienced less success than younger jobseekers in gaining employment.

During the course of the ABS study, older jobseekers looking for work fell from 74 per cent to 32 per cent. However, only about half of those ceasing to look for work did so because they chose to move out of the labour market, rather than because they became unemployed.

It is useful to examine employment population ratios in order to establish some sense of how many older people are actually employed, and how employment participation decreases with age. The ABS reports levels of participation in the workforce of older people:

Table 7.1 Employment Participation Rates in NSW for 55–64 year olds: Males and Females22

Males
%
Females %
55–59 years
70.8
46.8
60–64 years
43.7
18.6
Total Labour Force (15–64 years)
71.3
53.7

While these data demonstrate a high employment participation rate for men in the 55–59 year age bracket, those in the 60–64 bracket in NSW show a lower participation rate. In both age groups women have a much lower participation rate than men.

Research into age discrimination has been commissioned and undertaken by a variety of institutions. One 1999 study of employer attitudes conducted by Drake Management Consulting indicated that the problem is widespread and severe: “while we have long known that ageism is a problem in organisations, we were unaware of just how deep-rooted the problem is”.23 The study involved a survey of 500 senior executives and human resources managers from their employer clients. The survey asked questions in relation to age preferences in the recruitment, retrenchment and training of executive staff. No participants in the study indicated that they would hire executive staff over the age of 50. Twenty-three per cent reported that they would select employees from the 41–50 age group, while 62% said they would hire employees in the 31–40 age bracket.24

The study also shows a heavy bias against older people when decisions about retrenchment of staff had to be made. Sixty-five per cent of participants stated that the 50 plus age group would be the first to be offered redundancy, with 70 per cent of them saying “the reason why they’d retrench executives over the age of 50 ahead of others, is because they’re perceived to be inflexible and unwilling to change.”25 The study reported that on the contrary, older employees were amenable to change:


    Our findings show that as many as many as 86 per cent of senior workers are more than happy to take up training opportunities offered to them—crushing any suggestion that they are either too arrogant or too set in their ways to embark on learning.26

According to Drake’s findings, many executives make hiring, training and retrenchment decisions based on stereotypical assumptions about older people.

Similarly HREOC’s report, published in preparation for the introduction of age as a ground of discrimination at the Federal level states.


    Age discrimination in employment takes place in a context of negative attitudes and stereotypes of older people in general. Whether in recruitment, promotion, training, retirement or redundancy, older people are left feeling judged on their age rather than their abilities. They are made to feel expendable.27

HREOC recorded a number of stories from older people who made submissions to the enquiry outlining how they had experienced the brunt of negative stereotypes held by employers.

When reviewing the ADA, the NSW Law Reform Commission made the following comments on the age discrimination provisions in respect of assumptions about older employees:


    It aims at undermining entrenched attitudes where they are built on misconceptions. For instance, older workers are often presumed not to be skilled in modern technology, to be inflexible in their work practices, unable to acquire new skills and incapable of physically demanding work… That those judgements may be correct in particular cases does not mean that they are universally correct. Decisions should not be based on stereotyping assumptions.28

Employer practices that are motivated by these kinds of attitudes in relation to older workers may fall within the definition of unlawful age discrimination, but are often difficult to prove in a discrimination complaint because they are rarely overtly stated.

    We don’t receive many complaints of age discrimination because on the whole, it’s one of the more difficult grounds to prove.29

In response to this problem of proving age discrimination, some studies have set their sights on exposing age discrimination by exploring employer attitudes towards, and treatment of, older workers in comparison with younger workers.

The Social Policy Research Centre (SPRC) conducted a survey in 2001 of 1000 employers in the Business Services industry who had recruited in the last 12 months. This industry was “selected because of the diverse businesses and employment arrangements it includes and because it has a profile suggesting that it is representative of the employment opportunities available to older workers”.30 In their findings, 47 per cent of businesses did not employ any staff over the age of 55 in the past 12 months and 70 per cent had less than 10 per cent of their staff aged over 55 years. However, when they considered all employees in Business Services, not just of those employers surveyed, 10 per cent were over the age of 55.31

The SPRC study reported on numerous other studies32 showing that negative stereotypes of older employees, that act as barriers in recruitment, often contradict or conflict with an employer’s perceptions of their own older workers.

In the UK, an interim evaluation33 of the ‘Age Diversity in Employment; A Code of Practice’,34 a best-practice code introduced in 1999 by the Blair government, concluded that age discrimination in employment is difficult to prevent. Legislation prohibiting age discrimination is being considered in the UK, but has not yet been enacted. One conclusion from the report, according to the SPRC, is as follows:


    …The process of eliminating age discrimination in the labour market is difficult. Employer attitudes, business practices and the economic situation combine to limit the opportunities of older workers in the labour market. The British Code of Practice illustrates that while best practice models may be developed, unless age discrimination legislation can be effectively enforced, there may be little alteration in actual employer practices.35

The evaluation indicated that there had been little demonstrable change in employer policies as a result of the Code. This kind of study shows the persistence of negative attitudes towards older workers.

The SPRC tried to interrogate this issue further by posing a series of dichotomous characteristics commonly associated with older and younger workers to their sample of employers in the Business Services industry. The respondents were asked to indicate a preference between the various employee characteristics, without being informed that they were age-related stereotypes.

The results did not establish a pattern of preference, rather a mixture of qualities for ideal prospective employees. The SPRC reports that this is a different result to the earlier studies, which showed chiefly negative attitudes toward the characteristics associated with older employees.36 This finding is consistent with the argument that when the reference point of the older worker is removed, employers tend to have a more balanced view of the kinds of qualities that contribute to a beneficial working environment.

Another study conducted in Washington DC37 took a more experimental approach to test age discrimination in the hiring practices of employers in relation to entry-level management and sales positions. The study involved preparing four pairs of applicants for the experiment: three of the pairs were male, and one was female. One of each pair claimed to be aged 57 and one 32 years old. Hypothetical resumes were prepared for all 8 ‘testers’, with the researchers controlling for the differential work experience between the younger and older applicants by filling the 25-year age gap with work or life experience that was unrelated to the employment criteria. Nevertheless, each was assigned several years of relevant work experience appropriate to the target jobs. They then applied for positions in their respective pairs.

In 70 per cent of occasions, the members of each pair were treated comparably in the application process. In the remaining 31 per cent of occasions, the older of each pair experienced discrimination:


    …While older testers fared less well than their younger counterparts in all phases of the application process, the majority of their disadvantage arose immediately upon contacting employers, before they could present their qualifications fully.38

One of the older testers applied for a job and made contact four times without managing to speak with anyone directly. When the younger tester contacted the same employer, an interview was immediately organised.39

The pairs were also sent to interviews for various positions. They reported that older testers experienced discrimination in 34 per cent of the sales positions and 100 per cent of the managerial positions for which they applied. It was suggested that the relatively lower level of discrimination in sales might be explained by the nature of remuneration in that field, which is often wholly or partly commission-based. They reasoned that employers may perceive that it is less risky to hire older employees for commission-based sales positions, due to the lesser financial burden placed on those employers.40

In one sales position for which both members of a pair were interviewed, there were marked differences in the way each was treated. The older of the two was interviewed for 48 minutes and was warned against making a career change from teaching to sales. The younger applicant’s interview extended to 85 minutes, during which he was treated in a friendly and informal manner and, after a second interview, was offered a job.

Another finding of note was the increased level of discrimination when employment agencies were used as intermediaries. The study reported that older testers were treated less favourably than younger ones 84 per cent of the time when an employment agency was involved, as opposed to 29 per cent when no employment agency was engaged.


    All this evidence is consistent with the hypothesis that, with or without explicit instructions from their clients, many employment agencies assume that older applicants and other traditionally discriminated against groups should automatically be screened out.41

When older applicants did receive job offers, these were often qualitatively different from offers to younger applicants. Commission levels were often lower, and some older employees were offered part-time employment, in jobs where younger testers were offered full-time positions. The study also reported that factors such as whether the firm advertised themselves as an “equal opportunity employer” or whether they were a nationally recognised company, had no impact on the likelihood that they would discriminate against older job applicants.

The SEUP general population group consisted of a random sample of 1559 year olds. See Australian Bureau of Statistics, Older jobseekers, Australian Social Trends 1999, catologue n.4102.0, Australian Bureau of Statistics, Canberra, 1999. Available at <http://www.abs.gov.au/Ausstats/abs%40.nsf/94713ad445ff1425ca25682000192af2/d2da058a2cef2ba1ca25699f0005d62c!OpenDocument> (Last accessed 23 May 2003).
Older jobseekers numbered 168,000, representing 19% of the panel. See Australian Bureau of Statistics, Older Jobseekers.
Australian Bureau of Statistics,Work State summary tables, Australian Social Trends 2002, Catalogue n.4102.0, Australian Bureau of Statistics, Canberra, 2002. Available at <http://www.abs.gov.au/Ausstats/abs%40.nsf/94713ad445ff1425ca25682000192af2/695d4157b8409331ca256bcd00827300!OpenDocument> (Last accessed 21 March 2003).
Drake Personnel Limited, Age Discrimination is Alive and Well, Media Release, Drake Management Consulting, Melbourne, 5 November 1999.
Drake Personnel Limited, Age Discrimination is Alive and Well.
Drake Personnel Limited, Age Discrimination is Alive and Well.
Drake Personnel Limited, Age Discrimination is Alive and Well.
Human Rights and Equal Opportunity Commission, Age matters: a report on age discrimination, Human Rights and Equal Opportunity Commission, Sydney, 2000, p. 12.
New South Wales Law Reform Commission, Review of the Anti-Discrimination Act 1977 (NSW), vol. 1, Report n.92, New South Wales Law Reform Commission, Redfern, NSW, 1999, p. 269. Available at <http://www.lawlink.nsw.gov.au/lrc.nsf/pages/r92toc> (Last accessed 23 December 2003).
Consultation with Jill Moir, Anti-Discrimination Board of NSW, 30 September 2002.
Bittman, M., Flick, M. and Rice, J., The Recruitment of Older Australian Workers: A Survey of Employers in a High Growth Industry, SPRC Report 6/01, Social Policy Research Centre, University of New South Wales, Sydney, December 2001, p. 18.
Bittman, et al., The Recruitment of Older Australian Workers, p. 30.
Steinberg, M., Donald, K., Najman, J., Skerman, H., Attitudes of Employees and Employers Towards Older Workers in a Climate of Anti-discrimination, Australian Journal on Ageing, vol. 15, n.4, 1996, Encel, S., Age Discrimination, in Patrickson, M. and Hartmann, L., (eds), Managing an Ageing Workforce, Business and Professional Publishing, Warriewood, NSW, 1998, Reark Research, Attitudes of Employers Towards Older Workers: Report to NSW Office on Ageing, Reark Research, Sydney, 1994, and Senate Employment, Education and Training References Committee, Report on the Inquiry into Long Term Unemployment, The Committee, Canberra, 1995.
Department for Education and Employment, Evaluation of the Code of Practice on Age Diversity in Employment: Interim Summary of Results for Wave 2, Research Brief RBX 6/00, United Kingdom, 2000.
Department for Education and Employment, Age Diversity in Employment: A Code of Practice, United Kingdom, 1999, pp. 1516.
Bittman, et al., The Recruitment of Older Australian Workers, p. 16.
Bittman, et al., The Recruitment of Older Australian Workers, p. 40.
Bendick, M., Brown, L. and Wall, K., No Foot in the Door: An Experimental Study of Employment Discrimination Against Older Workers, Journal of Aging & Social Policy, vol. 10, n.4, 1999, p. 10.
Bendick et al., No Foot in the Door, Journal of Ageing and Social Policy, vol. 10, n.4, 1999.
Bendick et al., No Foot in the Door, Journal of Ageing and Social Policy, vol. 10, n.4, 1999, pp. 1112.
Bendick et al., No Foot in the Door, Journal of Ageing and Social Policy, vol. 10, n.4, 1999, p. 14.
Bendick et al., No Foot in the Door, Journal of Ageing and Social Policy, vol. 10, n.4, 1999, p. 15.

20  The SEUP general population group consisted of a random sample of 1559 year olds. See Australian Bureau of Statistics, Older jobseekers, Australian Social Trends 1999, catologue n.4102.0, Australian Bureau of Statistics, Canberra, 1999. Available at <http://www.abs.gov.au/Ausstats/abs%40.nsf/94713ad445ff1425ca25682000192af2/d2da058a2cef2ba1ca25699f0005d62c!OpenDocument> (Last accessed 23 May 2003).
21  Older jobseekers numbered 168,000, representing 19% of the panel. See Australian Bureau of Statistics, Older Jobseekers.
22  Australian Bureau of Statistics,Work State summary tables, Australian Social Trends 2002, Catalogue n.4102.0, Australian Bureau of Statistics, Canberra, 2002. Available at <http://www.abs.gov.au/Ausstats/abs%40.nsf/94713ad445ff1425ca25682000192af2/695d4157b8409331ca256bcd00827300!OpenDocument> (Last accessed 21 March 2003).
23  Drake Personnel Limited, Age Discrimination is Alive and Well, Media Release, Drake Management Consulting, Melbourne, 5 November 1999.
24  Drake Personnel Limited, Age Discrimination is Alive and Well.
25  Drake Personnel Limited, Age Discrimination is Alive and Well.
26  Drake Personnel Limited, Age Discrimination is Alive and Well.
27  Human Rights and Equal Opportunity Commission, Age matters: a report on age discrimination, Human Rights and Equal Opportunity Commission, Sydney, 2000, p. 12.
28  New South Wales Law Reform Commission, Review of the Anti-Discrimination Act 1977 (NSW), vol. 1, Report n.92, New South Wales Law Reform Commission, Redfern, NSW, 1999, p. 269. Available at <http://www.lawlink.nsw.gov.au/lrc.nsf/pages/r92toc> (Last accessed 23 December 2003).
29  Consultation with Jill Moir, Anti-Discrimination Board of NSW, 30 September 2002.
30  Bittman, M., Flick, M. and Rice, J., The Recruitment of Older Australian Workers: A Survey of Employers in a High Growth Industry, SPRC Report 6/01, Social Policy Research Centre, University of New South Wales, Sydney, December 2001, p. 18.
31  Bittman, et al., The Recruitment of Older Australian Workers, p. 30.
32  Steinberg, M., Donald, K., Najman, J., Skerman, H., Attitudes of Employees and Employers Towards Older Workers in a Climate of Anti-discrimination, Australian Journal on Ageing, vol. 15, n.4, 1996, Encel, S., Age Discrimination, in Patrickson, M. and Hartmann, L., (eds), Managing an Ageing Workforce, Business and Professional Publishing, Warriewood, NSW, 1998, Reark Research, Attitudes of Employers Towards Older Workers: Report to NSW Office on Ageing, Reark Research, Sydney, 1994, and Senate Employment, Education and Training References Committee, Report on the Inquiry into Long Term Unemployment, The Committee, Canberra, 1995.
33  Department for Education and Employment, Evaluation of the Code of Practice on Age Diversity in Employment: Interim Summary of Results for Wave 2, Research Brief RBX 6/00, United Kingdom, 2000.
34  Department for Education and Employment, Age Diversity in Employment: A Code of Practice, United Kingdom, 1999, pp. 1516.
35  Bittman, et al., The Recruitment of Older Australian Workers, p. 16.
36  Bittman, et al., The Recruitment of Older Australian Workers, p. 40.
37  Bendick, M., Brown, L. and Wall, K., No Foot in the Door: An Experimental Study of Employment Discrimination Against Older Workers, Journal of Aging & Social Policy, vol. 10, n.4, 1999, p. 10.
38  Bendick et al., No Foot in the Door, Journal of Ageing and Social Policy, vol. 10, n.4, 1999.
39  Bendick et al., No Foot in the Door, Journal of Ageing and Social Policy, vol. 10, n.4, 1999, pp. 1112.
40  Bendick et al., No Foot in the Door, Journal of Ageing and Social Policy, vol. 10, n.4, 1999, p. 14.
41  Bendick et al., No Foot in the Door, Journal of Ageing and Social Policy, vol. 10, n.4, 1999, p. 15.


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Ellison, S, Schetzer, L, Mullins, Perry, J & Wong, K 2004, The legal needs of older people in NSW, Law and Justice Foundation of NSW, Sydney