The future of work in an ageing world: Priorities for advancing age equality at work

Abstract

In an ageing world, age equality is critical for securing the future of work. Yet workplaces have not been designed with demographic ageing in mind, and age discrimination remains prevalent. This article offers a provocation to encourage the use of an age lens when considering the future of work and workplace change. It puts forward suggestions for future research and scholarship, to reframe equality law, and to build a research agenda that helps advance workplace equality for people of all ages.

Strengthening age equality is critical for securing the future of work in an ageing world. Demographic ageing is a global success story. At least until the COVID-19 pandemic, people were living longer, healthier lives. ¹ The Australian Bureau of Statistics (ABS) has projected that, by 2066, those aged 65 and over will represent between 20.7 per cent and 23 per cent of the total Australian population, up from 15.4 per cent in 2017. ² On average, then, Australians are getting older (‘demographic ageing’).

However, workplaces have not been designed with demographic ageing in mind. Age discrimination – against both older and younger workers – is rife. In 2021, the World Health Organization described ageism as ‘prevalent, ubiquitous and insidious’, damaging individual and societal health and well-being. ³ Age discrimination at work is estimated to cost Australian employers and governments tens of billions of dollars each year. ⁴ Age discrimination – unfavourable treatment on the basis of age – is related to, yet potentially distinct from, age equality, which might be seen as the multi-dimensional aim of redressing disadvantage, addressing stigma and stereotyping, facilitating participation, transforming structures and accommodating difference ⁵ for people of all ages. Reducing age discrimination might be seen as a first step, then, for achieving substantive age equality.

Demographic ageing is occurring when the nature of work itself is in flux. There is a growing field of academic scholarship considering the emerging and overlapping challenges facing workplaces, including the legacy of the COVID-19 pandemic, ⁶ the growth of flexible and remote work, ⁷ the use of digital technologies and surveillance in the workplace ⁸ and regulatory technologies to ensure compliance, ⁹ work precarity and job insecurity, ¹⁰ falling union membership, performance management and work intensification, ¹¹ declining pensions and superannuation, ¹² and climate change and just transitions. ¹³ While these areas are increasingly the subject of research and scholarship, they have rarely been considered as factors that might advance or inhibit age equality and the situation of specific age cohorts. ¹⁴ Scholarship has rarely considered how these general trends might need to be accommodated or adapted to achieve age inclusive workplaces.

That said, an age lens is critical for understanding these broader workforce trends; for example, while employment after COVID-19 lockdowns in Australia generally recovered in 2020, some older workers did not regain employment in certain industries. ¹⁵ Older workers may be over-exposed to the risks of a warming workplace, ¹⁶ raising specific workplace health and safety risks. Older workers may also particularly benefit from the flexibility of hybrid working, ¹⁷ yet might be stereotyped as being less able to adapt to these new technologies ¹⁸ or less able to undertake training. ¹⁹ Addressing these risks through proactive measures and policies can support older workers to remain in the workplace; ²⁰ there is an imperative, then, to promote workplaces that tackle these issues in a meaningful way to create inclusive work environments.

This article, then, offers a provocation, to encourage the use of an age (and ageing) lens to consider the future of work and workplace change. It starts by mapping the enduring prevalence and costs of age discrimination at work. It puts forward suggestions and ideas for future research and scholarship, to build a research agenda that will help advance workplace equality for people of all ages.

The prevalence and costs of age discrimination at work

The elimination of discrimination is a fundamental International Labour Organization (ILO) workplace right. ²¹ And yet, in 2021, the Australian Human Rights Commission (AHRC) found that the majority of Australians (63 per cent) had experienced ageism in the last five years; this was highest for young people (at 68 per cent). ²² In my study with Jeromey Temple of 2014 ABS General Social Survey data, we found that, of those experiencing discrimination in the previous year, 21.3 per cent of respondents reported experiencing age discrimination; ²³ and, of those who experienced age discrimination, 63.8 per cent reported experiencing it in the workplace. ²⁴

Employment brings important social, economic and health benefits for those who participate in the workplace. But, in addition to experiencing high levels of age discrimination at work, ²⁵ younger and older workers also experience disproportionate levels of un- and under-employment and job insecurity. In June 2022, according to the ABS Labour Force Survey, underemployment affected 6.3 per cent of the Australian working population overall, but 15.1 per cent of those aged 15 to 24; while the unemployment rate was only 3.5 per cent, it was 7.9 per cent for those aged 15 to 24. Older age is also associated with experiencing longer periods of unemployment. ²⁶

Age discrimination at work means employers are failing to benefit from the skills and capabilities of workers of all ages. With critical skills shortages, and demographic ageing, failing to create age-inclusive workplaces has individual, organisational and societal costs. At a societal level, Deloitte estimated (in 2012) that increasing employment rates by 5 per cent for those aged 55 and over would positively benefit the Australian economy by $48 billion annually by 2024–25. ²⁷ At an organisational level, resolving workplace disputes about discrimination comes at a significant cost; in the United Kingdom (UK), for example, Advisory, Conciliation and Arbitration Service (Acas) research estimated the cost to employers of workplace conflict in 2018–19 to be £28.5 billion, including the costs of managing complaints, dealing with court and tribunal proceedings and employee exit. ²⁸ Further, improving the psychosocial safety climate of workplaces – including by preventing bullying, discrimination and harassment – could save Australian employers more than AU$6 billion each year, by increasing productivity and reducing sickness absence. ²⁹ At an individual level, experiencing discrimination at work has significant deleterious effects on individual mental and physical health, ³⁰ increasing stress, rates of long-term sickness absence from work ³¹ and reducing productivity and performance. ³² Clearly, then, there is a need to proactively tackle discrimination before it occurs, to reduce or eliminate these significant costs. We need to identify strategies that can prompt more age-inclusive, less discriminatory workplaces.

Age discrimination law has been posited as a key measure to address these unequal outcomes at work. In Australia, age discrimination laws are in place at state, territory and federal level. Adverse action on the basis of age is also unlawful under the Fair Work Act 2009 (Cth). While age discrimination at work has been unlawful in Australia progressively since the 1990s, there has been limited meaningful change in organisations to create age-inclusive workplaces. Age discrimination laws can appear ambivalent towards age equality, through the use of extensive exceptions ³³ and by enabling mandatory retirement ages for some groups (like the judiciary). ³⁴ Now, 20 years after the enactment of the Age Discrimination Act 2004 (Cth), it is perhaps timely to conclude that age discrimination law is fundamentally ill-adapted for advancing age equality at work. Discrimination law’s primary reliance on an individual complaints model that retrospectively addresses individual harm has meant it has struggled to address age discrimination in work. ³⁵ Individuals appear unable or unwilling to pursue a complaint of age discrimination, including due to their own internalised age discrimination and a sense of stigma; statutory equality agencies receive few complaints, particularly from younger people, and even fewer claims are successfully conciliated or pursued to public court hearings. ³⁶ At the federal level in Australia, the first successful case under the Age Discrimination Act 2004 (Cth) was finally handed down in 2021, ³⁷ and successfully appealed – to increase the remedy – in 2023. ³⁸ In Gutierrez v MUR Shipping Australia Pty Ltd, ³⁹ Mr Gutierrez was pressured to set a retirement date, and to train his replacement, despite wanting to continue working. The Federal Circuit and Family Court of Australia accepted that this was age discrimination; on appeal, Mr Gutierrez was awarded $90,000 in general damages and $142,215.56 for economic loss. ⁴⁰

There is a strong and growing field of scholarship – in Australia and internationally – that recognises the limits of individually enforced discrimination law for achieving meaningful change. ⁴¹ And yet, identifying effective alternatives is still challenging. There are important gaps in knowledge as to how law and regulation can and should advance equality in the workplace. Scholars are increasingly considering how positive equality duties might represent a proactive, systemic counterpoint to the individual framing of discrimination laws. ⁴² The use of workplace health and safety law to address sexual harassment has also been canvassed. ⁴³ Overall, though, there remain important gaps in knowledge regarding how to make these initiatives effective in practice. Indeed, existing research on the implementation of positive duties in the UK has found that they can be excessively vague, encouraging organisational proceduralism and a ‘tick box’ mentality. ⁴⁴ Where positive duties are more prescriptive, organisations and governments may struggle to enact their requirements. ⁴⁵ Thus, there is a need for targeted research to better guide the development of proactive law and regulation in this area. This is a point I return to later in the article.

A new approach to advancing equality

Achieving age-inclusive workplaces is not just about addressing individual acts of discrimination. Individual complaints alone cannot prompt change. Rather, achieving age-inclusive workplaces requires structural, systemic change, to address the ways in which age-normative standards are embedded in workplaces. Further, it requires creative solutions to address barriers to inclusion. This is critical as Australia faces widespread labour shortages: in the inaugural Jobs and Skills Report 2023, it was concluded that Australia was facing significant skills gaps, with 36 per cent of occupations assessed as being in national shortage (332 out of 916) in 2023. ⁴⁶ This was 5 per cent higher than in 2022. ⁴⁷ There is an economic, social and human rights imperative to ensure the world of work supports workers of all ages.

We need to reframe our focus in equality law, to respond to this new world of work, and to go beyond the existing limits of discrimination law. I suggest a model grounded in regulatory theory and reflexive law, considering how these ideas might be adapted or applied to equality law specifically; ⁴⁸ and ideas of intersectionality, that individual protected characteristics cannot be viewed in isolation – disadvantage is interlinked, overlapping, and embedded in structures and systems. ⁴⁹

Drawing on this theoretical lens, equality law needs to become:

• dynamic (that is, continuously adapting);

• responsive (to individual and organisational needs, and wider societal changes);

• proactive (to address structural inequality, and shift responsibility to those most able to address inequality);

• intersectional (to recognise the diversity of age groups, challenge discriminatory structures, and authentically accommodate diverse lived experiences); and

• inclusive and participative (to centre those with protected characteristics as engaged partners in change).

For age equality specifically, there is also a need to move beyond a binary divide between older and younger workers, embracing the complexity of advancing age equality for workers of all ages, the heterogeneity of different age groups, and the way age stereotypes and norms are used to disadvantage both older and younger workers in similar ways. ⁵⁰

The future of work viewed through an age lens

With this focus on proactive, inclusive equality, we can bring an age lens to consider the future of work. But this lens also needs to be intersectional, recognising the way age amplifies and increases inequality as it interacts with other protected characteristics and social systems. ⁵¹

There is a need for targeted consideration of how we can best achieve equality and intergenerational fairness at work in an ageing world, and how law and regulation can best manage the workplace risks and opportunities of an ageing world. In 2022, I mapped a four fold model for strengthening the enforcement of age discrimination law to better advance age equality at work, encompassing reforms to individual enforcement; the adoption of positive equality duties; strengthening statutory equality agencies; and expanding the role of collective action. ⁵² But this research – with its targeted focus on discrimination law – captures only part of the complex picture of how we advance age equality at work. Focusing more broadly, then, an age lens emphasises four key developments that need focus in the future of work.

First, we need to build the capacity of Australian workplaces to respond to environmental change, in both urban and rural settings. Older workers may be over-exposed to the risks of warming workplaces. ⁵³ Lamarche and others found that the American Conference of Governmental and Industrial Hygienists Threshold Limit Values, as guidelines for work in the heat, were insufficient for protecting some older workers who struggled to dissipate heat. ⁵⁴ Lamarche et al therefore questioned whether the guidelines would protect all workers. ⁵⁵ Work health and safety laws place significant obligations on employers to proactively identify and actively manage risk. ⁵⁶ If these risks vary by age and other health conditions, this needs to be taken into account in identifying and managing risk. There is a compelling need for regulatory tools and strategies to help industry and governments respond to these risks in a nuanced and proactive way.

Second, the growth of workplace flexibility, and the prevalence of remote work, could help to reduce or offset the environmental impact of work. ⁵⁷ It may also particularly support older workers, avoiding the strain of commuting, and allowing better accommodation of health or caring needs. Previous studies have found an association between long-distance commuting and early retirement, at least for men. ⁵⁸ Rights to request flexible work, ⁵⁹ rights to remote work or hybrid work, and making flexible work the default, could all be important regulatory shifts for an ageing workforce. Yet employers might still resist flexible or remote work, including – or especially – for older workers.

Third, though, embracing remote work also requires embracing new workplace technologies. Older workers are often stereotyped as lacking the digital skills and capacities to make use of new technologies in the workplace. ⁶⁰ Stereotype threat – or the fear of confirming negative stereotypes – may lead older workers to under-utilise technology. ⁶¹ This becomes a vicious cycle: older workers are assumed to be incapable of learning new skills, and are therefore excluded from workplace training. ⁶² They then lack the skills to embrace new technologies, and may avoid technology for fear of embodying or confirming stereotypes regarding technology and age. Embracing workplace technologies also requires dismantling damaging age stereotypes, which limit older workers’ capacity to learn new skills and respond to workplace change.

Fourth, and related to the use of new technologies, we need to consider how workplace surveillance and algorithmic management might particularly impact older workers. ⁶³ There is evidence that certain groups are disproportionately impacted by workplace monitoring and surveillance: how we perceive workplace surveillance is gendered, ⁶⁴ and may differ on the basis of age, too. Indeed, it is likely that those who are over-exposed to discrimination and harassment at work are also those who are more likely to be concerned about workplace surveillance; ⁶⁵ this might include those who are over-exposed to age discrimination at work. Attitudes to surveillance may also differ based on how deeply people engage with social media, and this may differ by age; while younger workers generally spend more time on social media, older workers may increasingly have active social media lives. ⁶⁶

For algorithmic tools, too, there is a significant risk that older workers might be disadvantaged by the limited data used to train AI-based tools. Older workers are often excluded from data collection and are therefore under-represented in data. As the United Nations (UN) Independent Expert on the enjoyment of all human rights by older persons has concluded,

there is a serious gap in the data available to capture the lived realities of older persons and the enjoyment of their human rights. This lack of significant data and information on older persons is, in itself, an alarming sign of exclusion and renders meaningful policymaking and normative action practically impossible. ⁶⁷

This exclusion is likely to have flow-on effects to the datasets used to train algorithmic tools in the workplace. This may mean older workers are disadvantaged in workplaces that make use of AI-based tools. ⁶⁸ There is little known about how this is emerging in practice, and this is a critical area for future study.

Future priorities for scholarship and research

Building on this age lens, and a proactive, inclusive approach to equality, future research and scholarship should consider four critical emerging themes for advancing equality at work.

First, researchers need to consider the potential and limits of reframing equality rights as human rights. It has been argued that the individual enforcement model of equality law might be strengthened by reframing equality rights as human rights. This reframing is potentially a key tool for overcoming individual reticence to use legal complaints mechanisms to address age discrimination. ⁶⁹ Equality rights are critical for achieving other human rights, and yet the interplay between equality rights and human rights, and the framing of equality rights as human rights, remains underexplored. Australia does not yet have a federal bill of rights, although there are human rights statutes in place in Queensland, Victoria and the Australian Capital Territory (ACT), with each including a right to equality. There is also not yet a UN convention relating to the rights of older people or young people who are no longer seen as children. There is a need, then, to critically examine how equality rights can and should relate to human rights, building doctrinal linkages between human rights law and equality law. As progress is slowly made towards a UN convention on the rights of older people, ⁷⁰ researchers could develop participatory models for reframing equality rights as human rights in Australia, with a particular focus on the rights of older people. This research could advance equality law’s inclusive and participative goals. It could also build on comparative experiences in jurisdictions like the UK and Canada, where equality rights are already included as human rights. ⁷¹

Second, researchers should consider ways to advance collective approaches to equality. To date, unions have rarely prioritised age equality. ⁷² Yet collective action can be used to advance workplace age equality, including through equality bargaining. ⁷³ It is also a key means of ensuring inclusion, participation and voice for older workers. Effective collective action may require the creation and cultivation of new collective structures – that capture those who are not members of traditional unions – to advance equality in non-unionised workforces. There is also a need to evaluate progress towards equality bargaining in Australia and develop concrete approaches for supporting collective action to advance equality.

Third, scholarship should continue to consider how to leverage positive equality duties to achieve change. Positive equality duties prompt organisations to develop their own solutions to advance equality. ⁷⁴ Unlike individually-focused discrimination laws, positive duties seek to encourage proactive change and problem-solving by organisations, making equality an integral part of organisational processes. ⁷⁵ Positive equality duties could be a key tool for making equality law dynamic (that is, continuously adapting), responsive (to individual and organisational needs, and wider societal changes), and proactive. They also shift responsibility to those most able to address inequality.

While positive equality duties are seen as having significant potential to advance equality, including at work, there are still critical issues relating to how duties should be framed, and their enforcement mechanisms, to achieve organisational and governmental change. Critically, in the context of age equality, there is also a need to consider how age equality can or should be prioritised as part of positive equality duties that cover multiple protected characteristics. Without this prioritisation or focus, age equality risks falling off the agenda. ⁷⁶ It is also essential to develop strategies to ensure positive equality duties are intersectional in their development and implementation. Positive equality duties are now in place in Victoria, ⁷⁷ the ACT, ⁷⁸ Tasmania, ⁷⁹ and the Northern Territory, ⁸⁰ as well as under the federal Sex Discrimination Act 1984 (Cth) (although in relation to sex discrimination and sexual and sex-based harassment only); and have been proposed in Western Australia and Queensland. Future scholarship should continue to consider how positive equality duties might interact or interlink with other employer duties, such as those under the right to request flexible work and work health and safety duties, and how duties could be framed to minimise duplication, overlap and confusion, and keep age equality on the agenda. There is scope, too, to consider the development and implementation of duties relating to socio-economic inequalities, as have been adopted in Scotland and Wales.

Fourth, the future of equality research should emphasise how to use data to target the actions of statutory equality agencies. This builds on existing calls to use transparency and data collection to advance equality law, ⁸¹ and recognises that using complaint data to prioritise agency enforcement action might ignore or downplay age discrimination in particular. ⁸² Statutory equality agencies are increasingly being asked to re-emphasise their role in organisational capacity building, as part of the pyramid of supports to promote regulatory compliance. ⁸³ New technologies and data management might be used to advance these measures. For example, the emerging use of RegTech (regulatory technology) and data management in the field of equality – including the use of PowerBI data visualization software by the UK agency Acas, and the Queensland Human Rights Commission and Fair Work Commission to manage data – offers significant potential for statutory agencies to more appropriately target and prioritise their actions and interventions, ⁸⁴ beyond relying on complaint data.

Conclusion

We need to reframe equality law to address the workplace risks and opportunities arising from demographic ageing. This is critical for enabling governments, statutory equality agencies, employers, unions and workers to better respond to an ageing workforce, combat ageism and proactively enact measures that advance equality and intergenerational fairness at work. In particular, we need to prioritise reforming equality laws to become more adaptive, dynamic and effective in practice; designing workplaces that support workers of all ages and advance age equality; and promoting workforce participation for workers of all ages. There are critical questions scholars and researchers can ask and help answer; this article puts forward four areas of research priority, to build an age lens into the future of work. Future research and scholarship should critically engage with the feasibility and potential impact of these ideas, including through targeted empirical legal research.