Anti-discrimination statutes in most Western jurisdictions prohibit a broad range of age discrimination in employment. So far as I can see, most statutes of this kind draw a distinction between direct age discrimination, and indirect age discrimination, where the latter involves discriminating on the grounds of a condition, requirement or practice that disadvantages people of a certain age. In the latter case, this is prohibited unless the use of that condition, requirement or practice is "reasonable", and the onus of proof for this is on the discriminator. This is the position in Australian anti-discrimination law (see e.g., Age Discrimination Act 2004 (Cth), s. 15).

So, an obvious case that would arise a lot in employment decisions is to prefer a candidate that has more experience in the field of employment under consideration. Experience is a characteristic that is clearly related to age, so this could give rise to a claim of indirect age discrimination. My hunch is that this would usually be regarded as a reasonable practice, and no special evidence would be required to convince the court that a preference for experienced workers is "reasonable". However, I am not sure if that is the case in terms of the actual case law. In particular, would it be sufficient for a discriminator to ask the court to take judicial notice of the general fact that, ceteris paribus, more experience in a field of employment generally makes you more competent in that field. Would that be sufficient, or would a defendent be expected to put forward some more specific evidence of this? One the one hand, the discriminator bears the onus of proof, but on the other hand, the link between experience and competence is so general and well-known that it would seem to be something where mere judicial notice might be sufficient.

Question: Has there been any case law (in Australia) setting out the requirements of proof to show that discrimination on the basis of "experience" in employment is reasonable (or unreasonable)?

  • The law does not care of any discrimination, "reasonable" or not, unless a protected class/group is discriminated. People with (lack of) experience are not a protected class. What legal question is in here then? – Greendrake Mar 21 at 22:12
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    @Greendrake It's a reasonable question. As OP says, age is a protected characteristic in many jurisdictions. If you're intentionally using experience as a proxy for age then it may be unlawful - but it's going to be hard to prove that in most cases. – richardb Mar 21 at 22:31
  • @Greendrake: As stated in the question, age is the relevant protected characteristic, and experience is merely the indirect characteristic that is related to age. – Ben Mar 21 at 22:39
  • If older people were being discriminated against, the proxy would be too much experience. ?? – George White Mar 21 at 23:23
  • Here I have in mind the case where an employer favours people with more experience, which gives an advantage to older candidates. (So the discrimination complaint would come from a young candidate that does not have the necessary experience.) – Ben Mar 21 at 23:35

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