Introduction
歧視，作為一個熱門話題的問題已經爭論了很長一段時間。無論是雇員還是雇主都持有不同的觀點，從而以實現雙方自身的利益。在我看來，歧視分為以下幾種含義。例如，性別歧視，心理歧視，年齡歧視，種族歧視等..不過，我相信并不只是所討論的歧視的整個概念。在這份報告中，我只專注于其中年齡歧視在人類資源管理過程中的重要作用，以及雇主和雇員之間的互動。在人力資源管理方面的年齡歧視回避規定，所有的政策和程序及其執行情況由我整理并且進行分析。其中需要特別注意的是，以減少年齡歧視索賠的機會的進程將在本節中列出。

The issue of discrimination as a hot topic has been debated for a long time. Either employees or employers hold the different perspectives to achieve the benefits from both sides. In my opinions, discrimination is classified into several meanings. For instance, gender discrimination, mental discrimination, age discrimination, race discrimination and etc... Nevertheless, I believe that it is no possible to discuss the whole concepts of discrimination. In this report, I only focus on the interaction between employers and employees in which age discrimination plays the essential role in the process of human resource management. Avoidance of age discrimination in human resource management requires analysis of all policies and procedures and their implementation by managers. The processes which need special attention in order to minimize the chances of claims of age discrimination will be outlined in this section. The author is going to discuss about the elements that may affect the judgment of a HR when he or she is choosing staff.

就業年齡歧視法（ADEA）在1976年就通過了，它可以保護40歲及以上的就業的所有行為，包括招聘，晉升，培訓，薪酬和終止歧視歲的工人。盡管該法已經視為44歲以上的工人為不受保護的人群，甚至此法在最近的經濟衰退的大環境中顯得更加衰弱。去年有25000個案件在此法的保護下進行了快速有效的審理。

The Age Discrimination in Employment Act (ADEA) was passed in 1967. It protects workers aged 40 and over from discrimination in all acts of employment, including hiring, promotion, training, compensation and termination. Despite this law having been on the books for 44 years age discrimination is rampant and has become even more so with the recent recession. Cases of age discrimination being filed with the EEOC have increased at a high rate and topped 25,000 cases last year.

That, however, is not the entire picture of age discrimination. The empirical data has been that there is rampant age discrimination within the “over 40″ segment of the population. In 1967, 40 years old seemed really old to many people. Today not as much. But as the experience of many of my friends and colleagues has shown it is much more difficult to get a job when you are 50 years old versus 40. And it is even harder at age 60 and near impossible at age 70. #p#分頁標題#e#

 

Job description

Care needs to be taken to ensure that all job specifications and person specifications in job descriptions can be well supported, keeping in mind that these will be important for recruitment, selection, performance appraisal and perhaps, ultimately, in the termination of employment. If age is considered to be relevant by the employer, it must be remembered that use of this criterion will be unlawful unless it falls within an exception, for example, that age is an "inherent requirement" of the particular position. 

 

Recruitment

All anti-discrimination legislation expressly prohibits age discrimination in the advertising of jobs and significant monetary penalties may be imposed. Therefore, care must be taken in the wording of advertisements so that age requirements (eg "person 28-35 required") are avoided. It is also recommended that correlates of age, such as experience (eg "suit someone with 5 years experience") should be avoided, because this is often seen as a way of communicating age expectations, and, in any event, actual years of experience probably tells you very little about breadth of experience, skill or knowledge level. Other terms which should be avoided include "student, college student, retiree, elderly couple" (Kohl and Stephens, 1989, p20). Also, questions about age should be removed from recruitment forms so that part of the temptation to use this as a criterion is removed.

 

Selection

Quite clearly, selection decisions must not be based on age. If a 64 year old is the most qualified applicant for a job then he or she should be appointed and not a 35 year old lesser qualified person, even if is assumed that the younger person might stay in the role for a longer period of time, thus justifying any training investment. But, what if is the older person is "overqualified"? The legislation has not addressed this issue, but one American case, Taggart v. Time Inc., has considered whether rejecting an older person on the ground that they are overqualified might constitute unlawful age discrimination (Hukill, 1991). In this case, a unanimous three judge court panel found that an employer may discriminate against a younger worker on the ground of over qualification but may not deny employment to an older worker on this same ground because there are fewer job opportunities for older people, and older people are less likely to continue to seek work which is better matched to their qualifications whereas a younger person might be expected to seek alternative work. The selection area is one which is less open to public scrutiny than some other human resource management practices and the outcome may be "rationalized in such a way as to impart legitimacy to the decision" (Lyon, Hendry and Pollard, 1993, pl05). Therefore, it is not surprising that complaints about age discrimination in this area are less numerous. The process, however, is subject to the normal imposition of social stereotyping and so even if a person's age is not cited as the reason for not being appointed, it remains open for all applicants to allege that age was, in fact, the significant factor. To avoid allegations of age bias, some have suggested that greater reliance might be placed on the use of psychological tests (Arthur, Fuentes and Doverspike, 1990); others have suggested the use of multiple interviewers (Dipboye, 1992) and the mechanisation of as much of the process as possible (O'Connell, 1991; Schmitt et al 1993).#p#分頁標題#e#

 

Contracts of employment

Employers must not discriminate in the terms and conditions upon which jobs are offered, nor should fixed term contracts of employment be used in an endeavor to circumvent the age discrimination provisions of the various laws. The males and courts may see the transparency of such use. In order to set benchmarks against which the performance of an aging employee can be measured, it is recommended that all employment contracts contain provisions including the specification of duties, expectations and goals, performance appraisal procedures, the requirement to participate in training and keep "up-to-date", any grounds for transfer to alternative duties, positions or locations, and procedures for termination of employment. Not only should the duties be set out in the employment contract but also expectations which are less easily definable eg ability to adapt to change, to keep up-to-date changes to technology, work procedures. Further, goals and targets should be set at least annually and there should be a provision to allow for variation to duties and goals during the life of the employment. Use of contracts for a specified period of time may assist in avoiding the application of federal termination of employment legislation but will not assist an employer to avoid complaints of age discrimination under State and territory laws. A recent decision of the Industrial Relations Court of Australia and comments by the High Court in another case, confirm the law that where a contract expires by defluxion of time or expiry of its term, the employment ends by agreement not by an act of the employer. Though this may limit jurisdiction of the Federal Court under unlawful termination provisions of the Workplace Relations Act to actual dismissals, not failures to reemploy or agreements to retire at a certain age. State and Territory equal opportunity legislation does prohibit failure to employ on the grounds of age and expressly prohibits compulsory retirement by agreement or policy. Thus State Tribunals will have jurisdiction to review any failure to re-employ after the expiry of a fixed term contract. In all likelihood this issue will be addressed in the Qantas High Court appeal.

 

Performance Appraisal

As an employee ages their ability to perform their duties and perform them to an acceptable standard may decline. The contract of employment must contain a procedure to assess the employee's performance as the employee ages. The appraisal procedure must operate regularly and must be fully documented so that any decline in an employee's capacity or performance can be tracked to prove that decline. The appraisal must be a joint undertaking between the employer and the employee; if it is not, the procedure is always open to challenge by the employee at a later date.

A system for written acknowledgement of the outcome of the appraisal by the employee is therefore vital. If this cannot be obtained because the employee challenges the outcome, the process must provide for the employee comments and views on his or her performance and ability to be recorded.#p#分頁標題#e#

 

Training

If an employer requires that an employee keep up-to-date with changes in the workplace, and the work environment generally, it is possible that the employer must at least give the employee the opportunity to do so. For example, if an employee's initial training and qualifications over time become out-dated, an employer may not necessarily be able to terminate the employment if training, or at least the opportunity to access training is not available. Termination of employment for this reason may amount to indirect discrimination.

 

Termination of employment and retirement

As of January 1997 all Australian States and Territories except Tasmania and the Northern Territory had outlawed compulsory retirement. This raises the question of when aged employees will stop working? If they continue to work when will employers be entitled to terminate their employment? Crucial to answering these questions will be the nature of the work being performed by the employee, their physical and mental well-being and ability to perform the work. For employers, it is essential that non-discriminatory procedures are put in place to terminate employment, if and when necessary. Where there can be no set date or age for employment to come to an end, termination of employment can only occur for reasons other than the age of the employee, primarily the incapacity or inability of the employee to perform the duties required in a position. To justify a decision to terminate employment on the ground that the employee's performance in the job is unsatisfactory, the requirements of the position and expectations of the employer must be very clear and be precise, as stated above. In Gilshenen v P D Mulligan (Newcastle) & Anor. butcher aged 64 years was criticised for slowness and moved by his employer firstly to a shop with a lesser workload then to a sausage factory before being dismissed. Of the employer's allegation of slowness, justifying the moves and the dismissal, the Tribunal said: 

It is...not sufficient to allege that a person is slow; it is necessary also to add some index by which the degree of slowness is measured. Allegations of slowness are easily made and, unless there is some indication of the manner in which this is measured, very hard to rebut. A person may well be slower than another person but yet not so slow as to put his employment in jeopardy.

 

The Tribunal rejected the allegations of slowness because of the lack of a "benchmark" by reference to which the employee's performance could be measured. It decided that the move to the sausage factory where the work was repetitive, monotonous and not requiring skill of a butcher amounted to "conduct engaged in with a view to causing the employee to retire from employment on the ground of age.

 

Transfer to alternative duties

Termination of employment of an older employee is not the only option if performance and capacity to work are declining. An employer shoveled always consider transferring an employee to alternative duties, or redeployment, and provisions could be made in contracts of employment for this to occur. In the case of Gilshenen, referred to above, transfer was unilaterally made to a position inappropriate to the skills of the employee and was held to be discriminatory whereas in the case of Ghockson transfer was not foimd to be discriminatory.#p#分頁標題#e#

 

Cutting costs and downsizing without illegal discrimination

The need to become more competitive and to cut costs is a strong pressure calling for innovative human resource management practices. One such practice, in a market economy, might be to replace more expensive workers (those who have gained salary increments over the years or who have inflated salaries as a result of competition for employees in boom times) with those who are prepared to work for lower pay. The American literature suggests that corporations have reduced large numbers of mid-management positions and, where, replaced, it is with individuals willing to work for less (Zimmermann and Gowan, 1995). The South Australian Equal Opportunity Commission Armual Report (1995) provides a case study of a 34 year old woman who was removed from her position of Deli Manager at a supermarket and her hours reduced from 35 to 10 so that she could be replaced by juniors. In this case the complaint was conciliated and the complainant was reappointed to her foil-time position of Deli Manager. Some American cases have suggested that if an employer eliminates positions at one level and only has positions available at a lower level, then the more senior people should be considered for those positions even if they are "overqualified" for the vacant positions; they should be asked if they would be willing to accept a position at a lower level and at a lower pay level (Levine,1993). How to select employees for redundancy in downsizing exercises can be a vexed issue. This case was on whether the employer was required to prove a valid reason for the redundancy of each employee or simply to prove a valid reason for the number of redundancies, and the classifications of those to be made redundant. It was ruled that the employer had to show a valid reason for choosing each individual employee for redundancy. Therefore, employers cannot disguise terminations based on age through "across the board" redvmdancies, and if an employee alleges that age was a factor in being chosen the employer will be called upon to prove that it was for other valid reasons.The need to become more competitive and to cut costs is a strong pressure calling for innovative human resource management practices. One such practice, in a market economy, might be to replace more expensive workers (those who have gained salary increments over the years or who have inflated salaries as a result of competition for employees in boom times) with those who are prepared to work for lower pay. The American literature suggests that corporations have reduced large numbers of mid-management positions and, where, replaced, it is with individuals willing to work for less (Zimmermann and Gowan, 1995). The South Australian Equal Opportunity Commission Armual Report (1995) provides a case study of a 34 year old woman who was removed from her position of Deli Manager at a supermarket and her hours reduced from 35 to 10 so that she could be replaced by juniors. In this case the complaint was conciliated and the complainant was reappointed to her foil-time position of Deli Manager. Some American cases have suggested that if an employer eliminates positions at one level and only has positions available at a lower level, then the more senior people should be considered for those positions even if they are "overqualified" for the vacant positions; they should be asked if they would be willing to accept a position at a lower level and at a lower pay level (Levine,1993). How to select employees for redundancy in downsizing exercises can be a vexed issue. This case was on whether the employer was required to prove a valid reason for the redundancy of each employee or simply to prove a valid reason for the number of redundancies, and the classifications of those to be made redundant. It was ruled that the employer had to show a valid reason for choosing each individual employee for redundancy. Therefore, employers cannot disguise terminations based on age through "across the board" redvmdancies, and if an employee alleges that age was a factor in being chosen the employer will be called upon to prove that it was for other valid reasons.#p#分頁標題#e#

 

Conclusion

Nearly every area of human resource management is affected by age discrimination legislation. Complaints of age discrimination can be protracted and costly. Avoiding claims of discrimination by compliance with the legislation is clearly the best policy. This is not easy in practice because the interpretation of much of the legislation is still uncertain. Future decisions, will potentially have major ramifications on human resource practices and policies; and if the HREOC Report on compulsory age retirement is acted upon by the federal government, then more legislative change can be expected.

 

Reference

Kohl, J.P. and Stephens, D.B. (1989) Wanted: recruitment advertising that doesn't discriminate. Personnel, 66(2), pp. 18-26.

Hukill, C. (1991) Significant decisions in labor cases, Monthly Labor Review, 144(5), p.37.

Lyon, P.; Hendry, S. and Pollard, D. (1993) Ageism by increments: The cost of seniority. Journal of Educational Gerontology, 8(2), pp. 100-109.

Dipboye,R.L. (1992) Selection Interviews, Cincinnati: South-Western Publishing Co.

O'Connell, S.E. (1991) Automate the entire employment fvmction, HR Magazine, 36(6), pp.36-38.

Levine, M.J. (1993) Age discrimination in employment: The overqualified older worker. Labor Law Journal, 44(7), pp.440 - 444.