How likely is it that you’ll get another job over 50?

There’s a strong perception among employees, in particular professional and executive employees, that their job prospects diminish sharply when they hit their 50s. From what I can tell, this pessimism is well-founded.

The difference with age discrimination

Age discrimination is unlike other forms of discrimination (gender, race, political opinion) in that there is, in our society, an entrenched view that older people are not as productive in the workplace.

This perception is evident even in older employees who come to me seeking legal advice about age discrimination. There’s a resignation that isn’t found in employees who’ve been subjected to other forms of discrimination, such as racism or sexual harassment. Employees who’ve been sexually harassed may be incredibly distressed but in general, they want to do something about it. Employees who’ve been subjected to age discrimination are often resigned to their fate. They may come for advice but they rarely take the matter further.

Even when there’s a strong case — when the employer actually said, ‘It’s because of your age’ — there’s still a reluctance to take it on.

At some level, older workers subscribe to the same prejudices as our society at large. They think there’s something to it, so deeply entrenched are these attitudes.

All of this means that these attitudes are going to be very slow and difficult to change. It’s not enough to change or implement laws — the legal prohibition on age discrimination isn’t making any difference to what seems to be widespread cultural prejudice.

What we need is a profound shift in how we think about age in the workplace.

The need for research

To begin with, there needs to be more research about age capabilities, prejudice and discrimination. At the moment, there’s a lack of sufficient data to give adequate assessments. Which means that, often, we’re relying on speculation.

It’s very rare for an employer to say outright to a job candidate, ‘We’re not hiring you because of your age.’ Or to an employee, ‘I’m terminating your employment because of your age.’ These decisions are often made behind closed doors but, in many cases, older workers are left wondering if age was the driving force in the decision.

Similarly, there’s very little statistical evidence about ageing capacity in the workplace. Do older workers really slow down? Are they unable to cope with new technology? Or are these only myths…?

There needs to be more rigorous research done around these issues. And, if the results tell a different story to commonly held beliefs, there needs to be an education campaign.

The value of older people in the workplace

There’s enormous value in organisations having workers who are older. Older workers have skills, wisdom and experience that, by definition, others do not. There’s no shortage of examples of prominent people who’ve achieved spectacular career successes well into their 70s and 80s. Bart Cummings trained great racehorses into his 80s. Bernie Sanders is a 74-year-old frontrunner in the US Democrats’ presidential campaign.

The need for flexibility

People age at different speeds and have different capacities. The idea that someone has a tenable position one day and then reaches a certain age and suddenly exits the building is crude and simplistic. There needs to be more discussion within organisations and human resource departments about transitional arrangements and flexible approaches to work.

For example, an older worker might consider going part-time, or moving into a different role, or mentoring.  More consideration should be given to what they want and have the capacity to do.

Debates around generational change and opportunities are valid and important. Such issues need to be discussed openly, and more sophisticated thinking needs to take place around how to accommodate employees of all ages.

The disconnect between policy and the marketplace

There was some expectation that attitudes towards older workers would change as the baby boomers aged — but I’m yet to see evidence of this. On the contrary, the evidence suggests that there hasn’t been much change at all.

To most of us, 50 no longer seems that old. Here in Australia, we’re not eligible for the age pension until we’re 65, which is when many people choose to retire. People are working for longer. This means there’s a disconnect between the policy and political push to encourage people to continue working and what’s really going on in the marketplace.

To make matters worse, business has become more competitive and ruthless, which means social imperatives in the workplace are less and less a consideration.

The number one rule for jobseekers over 50

If you’re over 50 and find yourself pounding the pavement, my one piece of advice is: don’t advertise your age. Don’t lie about it but don’t advertise it.

There are no laws to prevent an employer asking your age in a job interview. But, unless it’s relevant to the job (and there aren’t many jobs where this is the case), it’s risky to ask.

The alternative route

Some older workers decide to move away from mainstream employment and, instead, set up a business or buy a franchise. This is particularly common among men over 50. Self-employment has its attractions but it’s also high risk. I’ve seen someone take a redundancy, buy a franchise and lose $200k in 11 months. My other advice is don’t go into franchising.

The legal path

If you believe you’ve been subjected to age discrimination, there are several legal options available, including avenues under both federal and state legislation. Most cases are resolved with some sort of settlement, usually compensation.

Age discrimination, like other forms of discrimination, is a result of firmly embedded cultural beliefs and attitudes. Unlike other forms of discrimination, there seems to be widespread acceptance and an unwillingness to change. Cultural shifts don’t happen overnight, but until we interrogate and challenge perceptions about age and employment, our workforce will continue to lose a valuable asset.

TOPIC: Employment law
RELATED LEGAL SERVICES: Employment law

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Josh Bornstein

Maurice Blackburn Melbourne
Josh Bornstein is a Principal at Maurice Blackburn, based in Melbourne. He is the head of the firm’s national Employment Law department and is a member of the Maurice Blackburn Board. Josh has 20 years’ experience as an employment lawyer, advising executive and managerial clients throughout Australia, as well as expatriate executives in Asia and Europe. He is available to consult with interstate and international clients by Skype. Josh is a skilled and strategic litigator with extensive experience regarding: employment contracts, restraint of trade, adverse action, unlawful discrimination, redundancy, disciplinary investigations, workplace bullying, sexual harassment and industrial disputation. Josh aims to resolve cases prior to litigation, and has negotiated numerous substantial out-of-court settlements. In all cases, he is vigilant about the protection of his client’s reputation. Josh is recognised as the top ranking Australian and Melbourne employment lawyer for employees in Doyle's Guide to the Australian Legal Profession 2013-2017 and is listed by the renown Expert Guides as among the best employment lawyers in the world. His legal achievements are extensive and include: Settled an unlawful discrimination class action against the Commonwealth for $100 million Represented the Victorian Government Ombudsman in a workplace investigation in 2015 Represented the incoming CEO of a listed property company in negotiating the terms of her employment contract Represented the Chief of Staff to a Victorian Government Minister whose workplace bullying complaint was investigated and upheld Obtained a seven-figure settlement for an unpaid bonus for a senior executive Obtained court orders preventing a hospital terminating the employment of a Nursing Unit Manager in 2015 Represented Essendon Football Club in ASADA's investigations during 2013-2014 Obtained a seven-figure settlement for a senior, long serving employee, after first taking urgent court action to prevent his employment being unlawfully terminated' Acted for the Fair Work Ombudsman in its prosecution of an employer who failed to offer a suitable position to an employee returning to work from maternity leave Confidentially resolved the cases of two female air traffic controllers in Federal Court proceedings who alleged prolonged sex discrimination and severe workplace bullying, and Josh is a highly-regarded and widely published legal commentator. He has contributed to academic and industry journals, and his opinion pieces on employment issues have been published in the mainstream media both nationally and internationally, including the Australian Financial Review, The Sydney Morning Herald, The Age, and The Guardian. His interest in disciplinary processes is informed by his role as Deputy Chair of a disciplinary tribunal in the horse racing industry. Memberships & accreditations Law Institute of Victoria Member Centre for Employment and Labour Relations Law Advisory Board Member (University of Melbourne) 2004 - ongoing Workplace Relations Section Executive Committee Member 2007-14 Maurice Blackburn Director 2004 - ongoing Australian Journal of Labour Law Editorial Committee Member 2012 - ongoing Racing Appeals and Disciplinary Board Deputy Chair 2013 - ongoing Australia Institute Director 2016 - ongoing Centre for Future Work Advisory Committee 2016 - ongoing Centre for Enployment and Labour Relations Law Advisory Board 2016 - ongoing Tzedek President 2012-14 Per Capita Director 2008-2014 State Trustees Director 2010-2012 Awards Doyle's Guide Melbourne Preeminent Employment Lawyer 2017 Expert Guides Best Employment Lawyers Worldwide 2017 Doyle's Guide Australian Market Leader Employment Lawyer 2016 Doyle's Guide Melbourne Preeminent Employment Lawyer 2016 Doyle's Guide Preeminent Employment Lawyer 2015 Doyle's Guide Market Leader Employment Lawyer 2014 Certificate of Service for Outstanding Contribution to the legal profession and Law Institute of Victoria 2014 Doyle's Guide Pre-eminent Employment Lawyer 2013 ...

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