Claim does not prove indirect age  discrimination

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Claim does not prove indirect age discrimination

Job applicants who argue indirect discrimination based on age have to be able to prove an employer’s selection was based on characteristics that related to a particular age group, and that the employer showed bias against that age group.

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Key point: Job applicants who argue indirect discrimination based on age have to be able to prove an employer’s selection was based on characteristics that related to a particular age group, and that the employer showed bias against that age group.

Detail: A group of ten women aged between 35 and 62 lodged an age discrimination claim against Virgin Blue Airlines.

The Queensland Anti-Discrimination Tribunal heard allegations that indirect discrimination was based on a group assessment process used to screen job applicants.

The women argued a requirement to ‘sing and dance’ in order to proceed to the next stage of the recruitment process was biased against older applicants.

The tribunal found there were at least five fundamental errors in the allegation of indirect discrimination in the group pleading.

  • First, the women’s claim did not allege age as a basis for the discrimination. The relevant age was not specified. The women were between 35 and 62 years of age.
  • Secondly, the women’s claim did not allege that the faculty of song and dance was dependent upon age. Nor, in the alternative, did it assert that the lack of a faculty of song or dance was presumed lacking in older people.
  • Thirdly, the claim did not plead the class of ‘comparators’ - ie those persons said to be without the attribute. This would have assisted in identifying the basis for any discrimination.
  • Fourthly, the women appeared concerned not with how many young people over older people could comply with the requirement, but with the fact that ‘young’ people rather than ‘old’ people applied for employment - viz ‘a higher proportion of the applicants ... were of younger attribute’. An indirect discrimination case should consider the number of applicants in either category that can comply with a term, not the number of applicants with or without the attribute.
  • Fifthly, it was not apparent what the women meant by [alleging] that younger applicants were able to comply with the requirement. If the requirement was to sing and dance – every applicant physically performed the routine. If the requirement was to go on to the next level of the recruitment process, then their claim did not make allowance for the fact that most of the applicants in all age groups did not go on to the next stage of the process. The uncontested evidence was that 93% of the younger group did not proceed further.

The airline rejected 93% of candidates under 32 and 92% of candidates above that age. That was the only direct and uncontradicted evidence.

See: Hopper and others v Virgin Blue Airlines Pty Ltd[2004] QADT 13 (12 May 2004) – Anti-Discrimination Tribunal Queensland- Savage SC.

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