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Age Discrimination Sample Assignment

Age discrimination occurs when a person is treated less favourably, or not given the same opportunities as others in a similar situation, because he or she is considered to be too old or too young. The Age Discrimination Act 2004 (ADA) prohibits discrimination in employment on the basis of age.

The Age Discrimination Act 2004 (ADA) prohibits discrimination in employment on the basis of age. It applies to young and older workers alike.

The ADA also protects younger and older Australians from discrimination in other areas of public life, including education; getting or using services; or renting or buying a house or unit.

In addition, the ADA makes it unlawful to harass or bully another person because of his or her age.

Prohibition of age discrimination

The Commission agrees that the prohibition on age discrimination in the area of work should cover applicants and employees, commission agents, contract workers, partnerships, industrial organizations, qualifying bodies and employment agencies in a similar manner to coverage in existing Federal, State and Territory legislation.

Definition of 'employment'

The Commission is not opposed to the proposal to define employment consistently with other Federal anti-discrimination law.

However, through its handling of complaints under the SDA, the Commission has become aware of an emerging number of people who, although in 'employment like' relationships, appear to fall outside of the definitions of employment, contract worker and employee contained in the SDA. Although a person may work at or out of the workplace of a principal on a regular and systematic basis, he or she will not come within the definition of 'contract worker' as they have a contract directly with the principal/organization. Also, due to the nature of their relationship, they may not clearly come within the definition of an 'employee'.

Accordingly, the Commission considers that in defining employment for the purposes of the proposed age discrimination legislation, attention should be directed to new and emerging forms of work and employment relationships, and steps should be taken to ensure that people who are in 'employment-like' relationships are appropriately protected by the legislation.

Unpaid work

As noted previously, the HREOC Act already covers discrimination on the basis of age in the area of employment or occupation. This definition of discrimination is based on that contained in the Discrimination (Employment and Occupation) Convention 1958 (ILO111). 'Discrimination' is defined in s 3 of the HREOC Act as:

  1. any distinction, exclusion or preference …….that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
  2. any other distinction, exclusion or preference that:
    1. has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
    2. has been declared by the regulations to constitute discrimination for the purposes of this Act;

Therefore, under the HREOC Act, a person can complain to the Commission about any treatment that has nullified or impaired their equality of opportunity in employment or in pursuing an occupation. This provision covers unpaid workers if they are undertaking work in order to pursue a particular occupation or to gain employment.

The Commission also notes that unpaid work is increasing in incidence and being used more broadly in order to obtain the experience needed to enter the workforce or retrain for another profession or occupation. Accordingly, discrimination in relation to selection for unpaid work could have significant consequences on a person's ability to pursue a particular occupation or form of employment.

In drafting legislation prohibiting age discrimination, the Commission is of the view that the breadth of the HREOC Act definition of discrimination should not be eroded and that the proposed legislation should also provide protection for people performing unpaid work where this work is performed in connection with an area of public life. The Commission does not consider it appropriate to extend the coverage of the legislation to unpaid work that is performed within the domestic sphere.

Volunteers make a significant contribution to the community in particular to the charitable and non-profit sector and the Commission submits that volunteers should also be covered by age discrimination legislation.

The Commission notes that protection for unpaid/volunteer work may best be achieved through the provision of a separate area of discrimination rather than by extending the definition of employment.

Youth wages, job training and younger workers

The Commission does not support the inclusion of specific permanent exemptions in age discrimination legislation for youth wages, job training programs or participation in Government work experience or community work programs such as the 'Work for the Dole' scheme.

The Commission considers that these issues can be dealt with through an appropriate special measures provision or exemptions in relation to acts done in direct compliance with an award, industrial agreement or Commonwealth legislation.

The ILO 111, which is scheduled to the HREOC Act, provides for special measures in the area of employment. It states:

  1. Special measures of protection or assistance provided for in other Conventions or Recommendations adopted by the International Labour Conference shall not be deemed to be discrimination.
  2. Any member may, after consultation with representative employers' and workers' organisations, where such exist, determine that other special measures designed to meet the particular requirements of persons who, for reasons such as sex, age, disablement, family responsibilities or social or cultural status, are recognised to require special protection or assistance, shall not be deemed to be discriminatory.

Special measure provisions are preferred because they are more flexible and targeted than specific fixed exemptions. They ensure that only those programs and policies that are designed and targeted to address disadvantage by a particular group are exempt from the operation of the legislation. Once the disadvantage that the program or policy has been set up to address has been remedied, then the program or policy would no longer be a special measure and exempt from the Act. In Age Matters, the Commission recommended that a number of special measures aimed at mature age-job seekers and older workers either be continued or implemented.

It is also noted that the proposed legislation provides the Commission with the power to grant exemptions. Organisations and departments delivering a program which they consider to be a special measure could apply to the Commission to have it exempt from the operation of age discrimination legislation.

The Commission notes that junior rates of pay are usually contained in industrial awards and agreements and any exemption in relation to acts done in direct compliance with awards or industrial agreements would cover this issue.

In Age Matters, the Commission also examined in some detail the issue of youth wages. It found that:

"Determining the acceptability or otherwise of junior rates has been difficult because of the lack of unequivocal evidence as to the effect their abolition would have on the youth labour market overall. If there is no significant detrimental effect, the differences cannot be justified. The evidence, however, is inconclusive." [20]

The Commission recommended that the Federal Government should:

  1. encourage and work with industrial parties to develop and trial a full range of employment, training and wage options for young people;
  2. amend the Workplace Relations Act 1996 to require the Australian Industrial Relations Commission to undertake a further review of junior rates and feasible non-discriminatory alternatives within a reasonable period; andrequire the Australian Industrial Relations Commission in its considerations of junior rates on a case by case basis to consult widely with young people and their representative organisations

base its assessment on whether junior rates are proportional to the objective of increasing young people's access to full-time employment and are the most effective and least discriminatory means to this end. [21]

The Commission considers that further consultation and research is needed on the issue of youth wages before youth wages are specifically exempted from age discrimination legislation.

The Commission supports the proposal of establishing an information/advocacy service for younger workers.

Disability discrimination

Disability discrimination occurs when a person is treated less favourably, or not given the same opportunities, as others in a similar situation because of their disability.

The Disability Discrimination Act 1992 (DDA) makes it unlawful to discriminate against a person, in many areas of public life, including: employment, education, getting or using services, renting or buying a house or unit, and accessing public places, because of their disability.

The DDA covers people who have temporary and permanent disabilities; physical, intellectual, sensory, neurological, learning and psychosocial disabilities, diseases or illnesses, physical disfigurement, medical conditions, and work-related injuries.

It extends to disabilities that people have had in the past and potential future disabilities, as well as disabilities that people are assumed to have.

In addition, the DDA protects people with disabilities who may be discriminated against because they are accompanied by an assistant, interpreter or reader; they are accompanied by a trained animal, such as a guide, hearing or assistance dog; or they use equipment or an aid, such as a wheelchair or a hearing aid.

The DDA also makes it against the law to discriminate against someone because of their association with a person with a disability.

Around one in five Australians has a disability. However, many face significant barriers when it comes to work, study, sport, getting around and simply taking part in everyday activities.

The Disability Discrimination Act 1992 protects individuals across Australia from unfair treatment in many parts of public life. The Act makes disability discrimination unlawful and promotes equal rights, equal opportunity and equal access for people with disabilities.

The Commission also has responsibilities to promote the United Nations Convention on the Rights of Persons with Disabilities, which Australia ratified in 2008. People who experience direct or indirect discrimination can complain to the Commission.

We work in partnership with others to help individuals and organizations around the country understand their rights and meet their legal responsibilities.

To do this, we conduct research and public inquiries, facilitate industry-wide reforms through disability standards and guidelines, assist organizations to develop Disability Action Plans and run community education programs.

We also assess applications for temporary exemptions under the Act and provide advice on laws, policies and programs that affect people with disabilities.

The Acting Disability Discrimination Commissioner, Emeritus Professor Rosalind Croucher AM leads this work.

Racial discrimination

Racial discrimination occurs when a person is treated less favourably, or not given the same opportunities, as others in a similar situation, because of their race, the country where they were born, their ethnic origin or their skin colour.

The Racial Discrimination Act 1975 (RDA) makes it unlawful to discriminate against a person because of his or her race, colour, descent, national origin or ethnic origin, or immigrant status.

The RDA protects people from racial discrimination in many areas of public life, including employment, education, getting or using services, renting or buying a house or unit, and accessing public places.

The RDA also makes racial hatred unlawful.

What is racial hatred?

Under the RDA, it is unlawful to do or say something in public that is reasonably likely to offend, insult, humiliate or intimidate a person or group because of their race, colour, or national or ethnic origin.

This behaviour is called racial hatred.

Examples of racial hatred could include:

racially offensive material in print or on the internet (including e-forums, blogs, social networking sites and video sharing sites), such as:

displaying racist posters, or

posting racially offensive cartoons, ‘memes’ or other images, or

racially offensive behaviour or language in a public place, like a workplace or a shop, such as:

calling people racist names, or

making racially offensive comments, jokes or gestures.

A person who subjects another person to racially offensive behaviour is primarily responsible for his or her behaviour. However, employers can be held responsible – or vicariously liable – for acts of racial hatred by their employees or agents.

The RDA aims to strike a balance between freedom of speech and the right to live free from racial hatred or vilification.

To strike this balance, the RDA outlines some things that are not against the law, provided they are ‘done reasonably and in good faith’ – even if they are done in public. Under the RDA, the things that are not against the law if they are “done reasonably and in good faith” are:

An artistic work or performance – for example, a play in which racially offensive attitudes are expressed by a character

A statement, publication, discussion or debate made for genuine academic or scientific purposes – for example, discussing and debating public policy such as immigration, multiculturalism or special measures for particular groups

Making a fair and accurate report on a matter of public interest – for example, a fair report in a newspaper about racially offensive conduct

Making a fair comment, if the comment is an expression of a person’s genuine belief.

The Racial Discrimination Act 1975 gives effect to Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. Its major objectives are to

promote equality before the law for all persons, regardless of their race, colour or national or ethnic origin, and

make discrimination against people on the basis of their race, colour, descent or national or ethnic origin unlawful.

Sex discrimination

Australia has made good progress towards achieving gender equality in recent times. However, women still experience inequality and discrimination in many important parts of their lives.

At work, women continue to face a gender ‘pay gap’ and barriers to leadership roles. Many encounter reduced employment opportunities because of the time they give to family and caring responsibilities.

Sexual harassment and gender-based violence also threaten women’s basic right to feel safe and respected at work, in public, in places of study and at home.

The Sex Discrimination Act 1984 gives effect to Australia’s international human rights obligations and promotes equality between women and men.

The Act protects people from unfair treatment on the basis of their sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy and breastfeeding. It also protects workers with family responsibilities and makes sexual harassment against the law.

People who experience direct or indirect discrimination can complain to the Commission.

The Commission works in partnership with a broad range of groups to promote gender equality and counter discrimination, sexual harassment, violence against women and other barriers to equality. We also act to overcome discrimination, harassment and hostility toward lesbian, gay, bisexual, intersex, trans and gender diverse people in Australia.

We undertake major research projects and provide policy advice to government and others to bring about positive change.

The Sex Discrimination Commissioner, Kate Jenkins, leads this work.

The Sex Discrimination Commissioner's role is to advance gender equality, consistent with the Sex Discrimination Act 1984 (Cth) and the Convention on the Elimination of All Forms of Discrimination Against Women.

Human rights

Human rights are an important part of our lives. In fact, they are so much a part of everyday living that we often take them for granted.

Consider how often you drink clean water, eat food, go to school, say or write what you think, get treated by a doctor, practice a religion (or not), or expect to be treated fairly by others.

All of these everyday activities depend on the adequate protection of your human rights, and the rights of others.

Australia has a strong and proud record on human rights. However, that record is not perfect. Some people are denied their basic rights, because of their colour, their race, their sex, sexuality a disability or some other aspect of who they are.

When people in Australia think about human rights, we often focus on violations that happen in other countries. Human rights are seen in terms of problems such as political dictatorship, torture, or unlawful executions.

Sometimes violations such as these happen on a large scale overseas and there is a tendency to think that, by comparison, any human rights problems in Australia are minor. However, human rights violations of one kind or another occur in all countries, including Australia.

Some groups in Australia are particularly vulnerable to human rights abuses. They include: Aboriginal and Torres Strait Islander people, asylum seekers, migrants from non-English speaking backgrounds, those living in poverty, people with a disability, and other groups.

Human rights issues can potentially affect anyone. Some people might experience discrimination in the workplace because of their age, race or gender. Other people with different sexual orientations or gender identities may be bullied for how they express themselves or who they are attracted to. Children and young people can be subjected to violence in the playground or at home. No matter what a person's status in society, they or a family member may at some stage in their lives be affected by a violation of their human rights.

In the following quote, the former Social Justice Commissioner, Mick Dodson, spoke of what human rights means in Australia for Aboriginal and Torres Strait Islander people. He used the term 'social justice', but he might just as easily have spoken of human rights generally:

'Social Justice is what faces you in the morning. It is awakening in a house with an adequate water supply, cooking facilities and sanitation. It is the ability to nourish your children and send them to school where their education not only equips them for employment but reinforces their knowledge and appreciation of their cultural inheritance. It is the prospect of genuine employment and good health: a life of choices and opportunity. A life free from discrimination.'

Mick Dodson, Social Justice Commissioner (1993 - 1998)

The Australian Human Rights Commission Act 1986 (formerly called the Human Rights and Equal Opportunity Commission Act 1986 ). established the Human Rights and Equal Opportunity Commission (now known as the Australian Human Rights Commission) and gives it functions in relation to the following international instruments:

International Covenant on Civil and Political Rights (ICCPR)

Convention Concerning Discrimination in Respect of Employment and Occupation (ILO 111)

Convention on the Rights of Persons with Disabilities

Convention on the Rights of the Child

Declaration of the Rights of the Child

Declaration on the Rights of Disabled Persons

Declaration on the Rights of Mentally Retarded Persons, and

Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.

In addition, the Aboriginal and Torres Strait Islander Social Justice Commissioner has specific functions under the AHRC Act and the Native Title Act,1993 to monitor the human rights of Indigenous people.

For further information: The Australian Human Rights Commission (information sheet).

Australian Human Rights Commission Regulations 1989 (Cth)

Section 3(1) of the Australian Human Rights Commission Act 1986 (Cth) defines discrimination. The Australian Human Rights Regulations 1989 (Cth) lists additional grounds which will constitute discrimination under the Act.

Equal opportunity

Equal opportunity is a state of fairness in which job applicants are treated similarly, unhampered by artificial barriers or prejudices or preferences, except when particular distinctions can be explicitly justified.According to this often complex and contested concept, the intent is that the important jobs in an organization should go to the people who are most qualified – persons most likely to perform ably in a given task – and not go to persons for reasons deemed arbitrary or irrelevant, such as circumstances of birth, upbringing, having well-connected relatives or friends, religion, sex, ethnicity, race, caste, or involuntary personal attributes such as disability, age, gender identity, or sexual orientation.

The Equal Opportunity Act 2010 took effect in August 2011.

This new Act replaces the Equal Opportunity Act 1995 and strengthens discrimination laws in Victoria by changing some key definitions, creating new responsibilities for the Commission, and strengthening the Commission’s role in helping government, business and the community identify and eliminate discrimination.

The objectives of the Equal Opportunity Act 2010 are to encourage the identification and elimination of discrimination, sexual harassment and victimisation and their causes, and to promote and facilitate the progressive realisation of equality.

To do this the Commission will provide a timely and effective dispute resolution service and has been given tools to encourage and facilitate best practice and compliance.

It is still against the law under the Equal Opportunity Act 2010 to discriminate against a person on the personal characteristics listed in the Equal Opportunity Act 1995.

It is also against the law to sexually harass someone or to victimise them for speaking up about their rights, making a complaint, helping someone else make a complaint or refusing to do something that would be contrary to the Equal Opportunity Act.

Download the Equal Opportunity Act 2010 quick guide for more information.

Under the Act the Commission may also intervene in cases or appear as amicus curiae to assist a court or tribunal considering equal opportunity issues.

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