Why Do Employment Age Discrimination Cases Fail? An Analysis of Australian Case Law

Abstract

Employment age discrimination cases are notoriously unsuccessful in Australia. While it is arguable that most strong cases are settled through conciliation, serious questions remain: are those cases that proceed to the courts particularly weak? Or are there procedural or substantive legal hurdles that operate as barriers to the success of claims? As the first rigorous study of age discrimination case law across all Australian jurisdictions, this article evaluates these two questions, drawing on employment age discrimination case law at federal, state and territory level up to 2017. This article interrogates and maps, both qualitatively and quantitatively, potential legal barriers to age discrimination claims. It offers original and innovative insights into the cases that proceed to court, and why they fail. It argues that while some cases may be weak, there appear to be procedural and substantive hurdles that limit the success of age discrimination cases. This article offers compelling evidence of the need for legal reform, or for a more sympathetic interpretation of existing statutes by the courts, if individual enforcement is to be used as a means of addressing age discrimination.