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

(2020) 42(1) Sydney Law Review 1-35

U of Melbourne Legal Studies Research Paper No. 934

38 Pages Posted: 24 Jun 2020 Last revised: 3 Jun 2021

See all articles by Alysia Blackham

Alysia Blackham

Melbourne Law School, the University of Melbourne; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: March 1, 2020

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.

Keywords: Age Discrimination, Employment, Australia

Suggested Citation

Blackham, Alysia, Why Do Employment Age Discrimination Cases Fail? An Analysis of Australian Case Law (March 1, 2020). (2020) 42(1) Sydney Law Review 1-35, U of Melbourne Legal Studies Research Paper No. 934, Available at SSRN: https://ssrn.com/abstract=3615679

Alysia Blackham (Contact Author)

Melbourne Law School, the University of Melbourne ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

HOME PAGE: http://https://www.findanexpert.unimelb.edu.au/display/person97769

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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