Age Discrimination

Age discrimination occurs when an employer treats someone unfavourably because of their age, whether they're perceived as too young or too old. This discrimination can happen at any stage of employment, from recruitment and hiring through to promotion, training opportunities, and termination. The Human Rights Act 1993 protects people aged 16 and over from age-based discrimination in employment.

Common examples include refusing to hire someone because they're 'overqualified' (often code for too old), excluding older workers from training programs, making assumptions about younger employees' commitment or capability, or targeting older workers in restructuring processes. Age discrimination can also manifest through workplace culture, such as age-related jokes, comments about retirement, or creating environments where older or younger workers feel unwelcome.

It's important to understand that age discrimination doesn't require explicit mention of age. Employers might use coded language like 'fresh thinking', 'digital natives', or 'energy and enthusiasm' when they really mean younger workers, or 'overqualified' and 'expensive' when referring to older candidates. The key is whether age was a factor in the decision-making process, regardless of how it's expressed.

Age discrimination often intersects with other forms of workplace mistreatment. For instance, older workers might face bullying and harassment that includes age-related elements, or find themselves disproportionately affected by redundancy processes that aren't genuinely based on business needs.

Under New Zealand law, you have strong protections against age discrimination in employment. The Human Rights Act 1993 makes it unlawful to discriminate against anyone aged 16 or over in employment matters. This protection covers all aspects of employment, including recruitment, selection, terms and conditions, access to training, promotion opportunities, and dismissal processes.

Your employer has positive obligations to prevent age discrimination, not just avoid it themselves. This means they must take reasonable steps to ensure their workplace is free from age-based discrimination and harassment, including addressing discriminatory behaviour by managers, colleagues, or clients. Employers who fail to take action when they know or should know about age discrimination can be held liable.

The Employment Relations Act 2000 also provides protections through the personal grievance process. If you experience age discrimination, you can raise a personal grievance for discrimination, which can lead to remedies including compensation, reinstatement, and orders for the employer to change their practices. You have 90 days from when the discrimination occurred to raise a personal grievance, though this timeframe can be extended in certain circumstances.

It's worth noting that there are very limited exceptions where age can be a genuine occupational requirement. These are rare and must be clearly justified by the nature of the work, such as age limits for airline pilots due to safety regulations. Most workplace roles cannot legally have age restrictions, and employers cannot justify age discrimination by claiming it's a business necessity or customer preference.

Age discrimination often isn't obvious or direct, making it crucial to recognise subtle patterns and warning signs. Look for disparities in how employees of different ages are treated in similar situations. For example, if younger employees consistently receive training opportunities, challenging assignments, or promotions while older workers are overlooked despite similar or superior qualifications, this could indicate age discrimination.

Pay attention to language used in the workplace. Comments about 'new blood', 'fresh perspectives', or suggestions that someone might want to 'slow down' or 'consider retirement' can be indicators of age bias. Similarly, assumptions about technological capability, adaptability, or energy levels based on age rather than actual performance are red flags. Even seemingly positive stereotypes, like assuming older workers are more reliable or younger workers are more innovative, can constitute discrimination if they influence employment decisions.

Recruitment and redundancy processes often reveal age discrimination patterns. Job advertisements seeking 'recent graduates' or 'digital natives' may unlawfully exclude older candidates, while redundancy selections that disproportionately affect older workers without clear, objective criteria could indicate age bias. Performance management processes that suddenly become more stringent for older workers, or disciplinary processes that seem to target age-related characteristics, are also concerning.

Document everything that seems unusual or unfair. Keep records of comments, emails, meeting notes, and decisions that appear to be influenced by age. Note patterns in how different age groups are treated, and gather evidence of your own performance and contributions to counter any age-based assumptions about your capabilities or value to the organisation.

Before pursuing external legal action, you may want to try resolving age discrimination through your employer's internal complaint processes. Most employers have policies against discrimination and procedures for raising concerns. Check your employment agreement, staff handbook, or company policies for guidance on how to make a complaint about discrimination.

When raising an internal complaint, be specific about the discriminatory behaviour and its impact on you. Provide concrete examples with dates, witnesses, and any supporting documentation. Focus on the behaviour and its effects rather than making assumptions about the person's intentions. Request specific actions to address the discrimination, such as training, policy changes, or disciplinary action against those responsible.

Your employer has a legal duty to investigate discrimination complaints properly and take appropriate action. They should conduct a fair investigation, interview relevant witnesses, and implement measures to prevent further discrimination. However, be aware that internal processes don't always result in satisfactory outcomes, and some employers may not take discrimination complaints seriously or may even retaliate against complainants.

Keep detailed records of your internal complaint process, including who you spoke to, when, what was discussed, and what actions were promised or taken. This documentation will be valuable if you later need to pursue external remedies. Remember that using internal processes doesn't prevent you from later raising a personal grievance, but it may affect the remedies available and how your case is viewed.

Building a strong age discrimination case requires careful documentation and evidence gathering. Age discrimination is often subtle and can be difficult to prove, so comprehensive records are essential. Start documenting as soon as you suspect discrimination is occurring, but don't worry if you haven't been keeping records from the beginning - start now and gather what historical evidence you can.

Keep detailed records of discriminatory incidents, including the date, time, location, people present, exactly what was said or done, and how it affected you. Save emails, text messages, and any written communications that contain age-related comments or show disparate treatment. Take notes during meetings where age-related issues arise, and follow up with email summaries to create a written record.

Gather comparative evidence showing how employees of different ages are treated in similar situations. This might include promotion records, training opportunities, performance reviews, or disciplinary actions. Look for patterns that suggest age is influencing employment decisions. Statistical evidence can be powerful in discrimination cases, showing systematic disparities in how different age groups are treated.

Collect evidence of your own performance and contributions to counter any age-based assumptions about your capabilities. This includes performance reviews, achievement records, training certificates, client feedback, and examples of successful projects or initiatives. This evidence helps demonstrate that any negative treatment isn't based on legitimate performance concerns but on age bias.

Witness statements can be crucial, especially from colleagues who observed discriminatory behaviour or can attest to patterns of age-based treatment. However, be sensitive to the fact that colleagues may be reluctant to get involved due to fear of retaliation. Consider whether there are former employees who might be willing to provide statements about their experiences or observations.

If internal processes don't resolve the discrimination or aren't appropriate for your situation, you can raise a personal grievance for discrimination. This is a formal legal process under the Employment Relations Act 2000 that can result in compensation and other remedies. You must raise a personal grievance within 90 days of the discriminatory act, though this timeframe can sometimes be extended in exceptional circumstances.

The personal grievance process typically begins with attempting to resolve the matter through direct negotiation or mediation. Many discrimination cases are resolved at this stage through negotiated settlements that might include compensation, apologies, policy changes, or other remedies. Mediation is confidential and allows both parties to explore creative solutions that might not be available through formal legal proceedings.

If mediation doesn't resolve the matter, your case can proceed to the Employment Relations Authority (ERA), which is a specialist tribunal that deals with employment disputes. The ERA will investigate your claim, hear evidence from both sides, and make a determination about whether discrimination occurred and what remedies are appropriate. The process is less formal than court proceedings but still requires proper preparation and presentation of evidence.

Throughout the personal grievance process, you have the right to be represented by a lawyer or advocate. Given the complexity of discrimination law and the importance of proper evidence presentation, legal representation is highly recommended. An experienced employment lawyer can help you assess the strength of your case, gather appropriate evidence, and navigate the legal process effectively.

If you successfully prove age discrimination, various remedies may be available depending on your specific circumstances and the impact of the discrimination. The Employment Relations Authority and Employment Court have broad powers to order remedies that address both the financial and non-financial harm caused by discrimination.

Compensation for hurt and humiliation is commonly awarded in discrimination cases. This recognises the emotional distress, damage to dignity, and psychological impact of discriminatory treatment. Awards typically range from a few thousand dollars for minor incidents to tens of thousands for serious, ongoing discrimination. Factors affecting the amount include the severity and duration of the discrimination, its impact on you personally and professionally, and whether the employer took steps to address the situation.

Lost wages and benefits compensation covers financial losses resulting from the discrimination. This might include lost salary from wrongful dismissal, missed promotion opportunities, or reduced hours due to discriminatory treatment. Future loss calculations can also be included if the discrimination has damaged your career prospects or earning capacity. This type of compensation requires clear evidence linking the financial losses to the discriminatory treatment.

Reinstatement to your job may be ordered if you were dismissed due to age discrimination, though this is less common in discrimination cases as the employment relationship may be too damaged to continue effectively. More often, compensation is awarded instead of reinstatement, particularly if you've found alternative employment or the workplace environment remains problematic.

Non-monetary remedies can be equally important and might include orders for the employer to implement anti-discrimination training, change policies and procedures, provide apologies, or take disciplinary action against those responsible for the discrimination. These remedies help prevent future discrimination and can provide a sense of vindication and closure for the affected employee.

Addressing age discrimination effectively requires more than just responding to individual complaints - it needs systematic changes to workplace culture and practices. Employers have legal obligations to prevent discrimination and create inclusive workplaces, but employees and their representatives can also advocate for positive changes that benefit everyone.

Age-inclusive recruitment practices are essential for preventing discrimination from the outset. This includes writing job advertisements that focus on skills and experience rather than age-coded language, using diverse interview panels, and ensuring selection criteria are genuinely related to job requirements rather than assumptions about age and capability. Employers should also review their recruitment channels to ensure they reach candidates of all ages.

Training and development opportunities should be available to all employees regardless of age. Age discrimination often manifests through assumptions that older workers don't want or need training, or that younger workers aren't ready for certain responsibilities. Inclusive workplaces provide equal access to professional development, mentoring programs, and career advancement opportunities based on individual merit and interest rather than age stereotypes.

Performance management systems should be objective and fair, focusing on actual performance rather than age-related assumptions. This includes regular performance reviews, clear expectations, and support for improvement where needed. Age bias can creep into performance evaluations through stereotypes about energy, adaptability, or technological skills, so training managers to recognise and avoid these biases is crucial.

Creating intergenerational workplaces that value the contributions of all age groups benefits everyone. This might include mentoring programs that pair employees of different ages, team structures that leverage diverse perspectives, and recognition programs that celebrate achievements regardless of the employee's age. When workplaces actively promote age diversity and inclusion, discrimination becomes less likely and productivity often improves.

Age discrimination cases can be complex, and getting legal advice early can significantly improve your chances of a successful outcome. Consider consulting an employment lawyer as soon as you suspect age discrimination is occurring, even before making formal complaints. Early legal advice can help you understand your rights, assess the strength of your potential case, and develop a strategy for addressing the discrimination effectively.

Legal representation becomes particularly important when raising a personal grievance. Employment lawyers understand the technical requirements for personal grievance claims, including strict timeframes, evidence requirements, and procedural steps. They can help you present your case in the strongest possible way and navigate the complexities of employment law and discrimination legislation.

If your employer has significant resources or is represented by lawyers, having your own legal representation helps level the playing field. Employment disputes can involve complex legal arguments, and employers may use sophisticated legal strategies to defend against discrimination claims. An experienced employment lawyer can match these tactics and ensure your interests are properly protected.

Consider legal help particularly urgently if you're facing retaliation for raising discrimination concerns, if the discrimination is ongoing and affecting your health or wellbeing, or if you're being pressured to accept inadequate settlement offers. Lawyers can also advise on whether you have other potential claims alongside age discrimination, such as constructive dismissal or workplace harassment.

Remember that many employment lawyers offer initial consultations to assess your case and explain your options. This can help you understand whether you have viable claims and what the likely process and outcomes might be. Even if you decide not to proceed with legal action immediately, having professional advice about your rights and options can help you make informed decisions about how to handle the situation.