The ‘silent discriminator’ endemic in our workplace

In 2018, Alex Gutierrez was celebrating his birthday at work with colleagues when his manager asked him about his intentions to retire. He was 68 years old.

He was informed the company’s policy was that employees retire at 65 years old. A loyal employee, Gutierrez began working with the shipping company in 2003 as chief accountant.

Alex Gutierrez won a landmark age discrimination case against his former employer.Credit: Edwina Pickles

Knowing his rights, Gutierrez informed the manager that this was unlawful. His response was, “I will work until I drop dead, or you kick me out”. The company offered him a new contract.

“Terminating my employment contract and putting me into another contract was illegal. I advised my employer to seek legal advice on this and to discuss this. I did not get a reply,” he says.

“They already had someone in mind to take the role. Accepting defeat, I reluctantly gave my retirement date, September 2019 to coincide with my 70th birthday.”

Reeling from the injustice, he commenced proceedings in November 2019, against the company in the Federal Circuit and Family Court for breaches of the Age Discrimination Act 2004, citing he had been discriminated against because of age.

We must confront ageism in our daily lives and media.

Council on the Ageing CEO Patricia Sparrow

Experiences similar to Gutierrez’ are not uncommon. A survey from EveryAGE Counts found that 70 per cent of people believe that ageism is a serious problem in Australia. While Australia has age discrimination laws, their survey reveals that age discrimination is rife.

Experts believe it’s leading to a situation where experienced older workers are having their expertise squandered, with many workers unfamiliar with their rights and the legal pathways available to them if they believe they are being discriminated against.

The case would prove a landmark win for Gutierrez. After the appeal he received $90,000 in general damages for pain and $142,215.00 for economic loss, amounting to the lost salary for being sacked before he wished to retire.

The invisible discriminator

Dr Marlene Krasovitsky, from EveryAGE Counts, said ageism is so pervasive and highly tolerated that it is sometimes invisible. A national campaign, initiated by the organisation, ran in October to raise awareness across the globe.

“[Ageism] has devastating impacts on physical and mental health, longevity, employment prospects and participation opportunities,” she says. “We have to change the way we think, feel and act. Without awareness nothing changes, and ageism affects all of us. We’re all ageing.

“Age as a diversity is largely absent from organisational diversity, equity and Inclusion strategies. This means there is no visibility of how ageist attitudes and practices may be impacting recruitment, retention, promotion and exit strategies.”

Know your rights.

Council on the Ageing CEO Patricia Sparrow says ageism is not just prevalent in Australia – it’s endemic. “The consequences ripple through our society and economy, demanding urgent action. Consider this: 35 per cent of older Australians face age-related discrimination after turning 50,” Sparrow says.

In many instances, the experience and skills of older people are being squandered. “Shockingly, one in three recruiters admit to hesitating when hiring older workers – even as we face critical skills shortages across sectors.”

Workers should document incidents, seek support, and use formal complaint mechanisms under the Australian Human Rights Commission. “Your experience matters, and your voice deserves to be heard,” she says.

“We must confront ageism in our daily lives and media. These ‘subtle’ biases aren’t subtle at all – they’re eroding the value we place on older Australians’ contributions.”

For anyone in a similar situation, Gutierrez recommends recording all conversations regarding retiring.

“Discuss with supervisors or HR if there are hints that employer wants to get rid of old timers,” he says, noting legal action should be avoided if possible due to the expense and personal toll.

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