QuestionApr 12, 2021 - 5:24
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Is it “reasonable” to discriminate based on “experience” in employment (anti-discrimination law)
Anti-discrimination regulations prohibit a broad range of age discrimination in employment in various Western jurisdictions. As far as I’m aware, most of them draw a distinction between direct age discrimination, and indirect age discrimination, whereas 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 considered "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). As a result, a common instance that would happen a lot in employment decisions is to prefer a candidate with more experience in the field of employment under consideration. Experience is a characteristic that is directly related to age, so this could give rise to a claim of indirect age discrimination. In my point of view, 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 certain if that is the case in terms of the actual case law. Has there been any case law in Australia clarifying the requirements of proof to indicate that discrimination on the basis of "experience" is reasonable (or unreasonable)?
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