What are my rights if I believe my boss wants to replace me with a younger employee?

You may be able to make a claim for unlawful discrimination on the basis of age or on the basis of physical features. Age is a protected attribute under s 6(a) of the Equal Opportunity Act 2010 (Vic). Physical features are a protected attribute under s 6(j) of the Equal Opportunity Act 2010 (Vic).

You will need to show that you are being treated unfavourably because of your age or physical features and that you are suffering some form of loss or damage if you want compensation. Because you are likely to find it more difficult to secure a new position elsewhere, you may wish to look at an injunction against the company preventing it from dismissing you. This is a complex process for which you would certainly need legal representation. However, usually by lodging a claim at the Victorian Equal Opportunity and Human Rights Commission the employer will abide by the legal process which you have initiated and not dismiss you.

You will need specific evidence of discrimination such as comments that you heard when you saw new staff recruited, including “We have selected a candidate. She is young and gorgeous” or “We are employing ‘Gen Y’ – the future of the organisation”. You may be rebuked during a training session, “No-one is interested in what you have to say. You are living in the past.” One or two of these comments may be innocuous enough but if they are repetitive and pointed you may fear for the future of your employment and wish to take action.

You will need to make a decision whether or not to make a complaint within the organisation or go outside. Sometimes complaints made within the organisation only go to identify you as a troublemaker which could lead to things getting worse for you. You will need to make a decision as to whether or not you believe that the culture of the organisation has changed and if so, you will need to go outside to have your complaint investigated. The law provides protection for employees who make complaints.

Victimisation

You must not be victimised for lodging a complaint with the Victorian Equal Opportunity and Human Rights Commission. S 103 and 104 of the Equal Opportunity Act 2010 (Vic) prohibit victimisation because you have brought a complaint to the Commission.

If the discrimination is by one or two individuals within the organisation, you are entitled to name those individuals in your complaint. The employer is potentially liable by the operation of the law, under s 109 of the Equal Opportunity Act 2010 (Vic), even if the individuals who are discriminating against you are acting against the employer’s policies.

Age discrimination in employment is also prohibited at a federal level under s 18 of the Age Discrimination Act 2004 (Cth).