I’m aged in my 60s. I went for an internal promotion at an organisation I have been with for a long while. I was eminently qualified for the job but did not get it. It went to a younger candidate.
They asked in the interview, “where do you see yourself in five years?” Should I have been asked that question? Are they even allowed to ask that at my age?
Credit: John Shakespeare
I asked Dr Alysia Blackham, an associate professor and director of teaching at Melbourne Law School, for her thoughts on your question. She told me that discrimination law is highly fact-dependent and so her general thoughts on the matter, which you can read below, shouldn’t be taken as legal advice.
“Age discrimination at work is prohibited by laws federally – the Age Discrimination Act 2004 (Commonwealth), and Fair Work Act 2009 (Cth) adverse action provisions – and at state and territory level. State laws are more flexible in Victoria than in New South Wales, for example, so I will focus my comments here on the federal discrimination laws.”
“The Age Discrimination Act 2004 (Cth) prohibits both direct and indirect age discrimination. Direct age discrimination requires less favourable treatment on the basis of age. That is, you have to be treated less favourably than someone of a different age, and that treatment has to be because of your age.”
Associate Professor Blackham said that your concern seems to relate to a question that was likely asked of everyone in the interview process, regardless of their age.
‘Asking about people’s future plans and aspirations in a job interview or promotion interview is fairly common practice.’
Dr Alysia Blackham, Melbourne Law School
“This may be closer to a case of indirect discrimination,” Blackham said. “Indirect discrimination involves imposing a condition, requirement or practice on someone that disadvantages people due to their age, and which is not reasonable. A condition, requirement or practice might be that you need to work for another five years to be promoted, for example. The question would be: is this requirement reasonable?”
The question itself may not be discriminatory, Blackham said. In fact, it might even be an attempt to avoid discrimination. But how the decision-makers responded to your answer is still important.
“Asking about people’s future plans and aspirations in a job interview or promotion interview is fairly common practice. The questions are often seen as a way to work out how motivated or ambitious someone might be, to assess their degree of commitment to their job or their career, and to see if their career goals align with those of the organisation. Asking this question may not be discrimination, particularly if an employer has good reasons for wanting to know the answer.
“Mandatory retirement ages are prohibited in Australia for most jobs. Employers cannot assume that you will retire at a particular age, so this question is potentially relevant to people of all ages. However, if you disclosed that you plan to retire, and the employer used that information to deny you the promotion, that might be discrimination.”
Again, the above shouldn’t be taken as specific legal advice. But Blackham suggested that if you suspect you have been subject to discrimination at work, there are statutory equality agencies in your area that can give you advice. You might also consider calling a community legal centre for assistance.
If you do end up making a claim, one other thing that Blackham brought up is worth keeping in mind. A number of laws might apply to your case, but “you can only bring one claim; either under state discrimination law, federal discrimination law, or the Fair Work Act 2009 (Cth). Your choice affects which institution or agency deals with the claim.”
Send your Work Therapy questions to jonathan@theinkbureau.com.au
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