In Faces of Inequality, Sophia Moreau puts forward a pluralistic theory of how discrimination wrongs people. I approach Moreau's ideas not as a legal philosopher or theorist, but as an empirical and socio-legal scholar of equality law. In this commentary, I pick up on five provocations that emerge for me from Moreau's work: on reasonable accommodations, on comparison in equality law, on the public/private divide, on the justification of discrimination, and on discrimination as a personal wrong. While Moreau's work is grounded in the common themes or shared features that emerge from equality laws across jurisdictions, I consider what these themes mean for the uncommon ground, drawing on exceptional developments in discrimination law in some Australian jurisdictions, and our experience with the “exceptional” protected characteristic of age.

Discrimination law primarily relies on individual enforcement for addressing discrimination at work; yet those who are most impacted by discrimination are likely the least able to enforce their rights. The question then becomes: what role should individual enforcement play in discrimination law? Can we effectively abandon individual enforcement as part of the legislative model? Drawing on a mixed method, multi-year comparative study of the enforcement of age discrimination law in the UK, Australia and Sweden, this paper considers the gaps, limits and risks of the individual enforcement model in discrimination law. Integrating doctrinal analysis; statistical analysis of claims and cases, and data from the EU and OECD; qualitative expert interviews; and a survey of legal practitioners, this paper argues that while individual enforcement is inherently limited as a tool for achieving systemic change, it must remain part of any legislative model. Reflecting on the experience in Sweden, where individual enforcement of discrimination law is significantly curtailed, the paper posits that individual rights and individual enforcement remain important complements to other regulatory tools, particularly in jurisdictions with strong enduring age norms. Abandoning or severely restricting individual enforcement is unlikely to support either the macro or micro effectiveness of age discrimination law.

We explore whether ageist stereotypes in job ads are detectable using machine-learning methods measuring the linguistic similarity of job-ad language to ageist stereotypes identified by industrial psychologists. We then conduct an experiment to evaluate whether this language is perceived as biased against older workers searching for jobs. We find that job-ad language classified by the machine-learning algorithm as closely related to ageist stereotypes is perceived by experimental subjects as biased against older job seekers. These methods could potentially help enforce anti-discrimination laws by using job ads to predict or identify employers more likely to be engaging in age discrimination.

It has often been stated by older people's advocates that discrimination affecting older people is commonplace and ongoing in the Australian labour market. In this article, we contrast such rhetoric with a review of evidence from recent large-scale surveys which demonstrates that low and declining numbers of Australians experience age discrimination, while highlighting the complexity of the phenomenon. We identify the emergence of a fake ‘age’ advocacy that is acting to the detriment of an informed public discourse concerning issues of older workers’ employment. To counter this we propose five underlying principles for advocacy on ageing and work: countering myths concerning the extent and nature of age barriers in the labour market; avoiding and challenging the use of age stereotypes in making the business case for older workers’ employment; recognition that age interacts in complex ways with a range of other factors in determining people's experiences of the labour market; challenging public understanding that is grounded in the notion that generational conflict is inevitable; and discarding traditional notions of the lifecourse in order to overcome disjunctions and contradictions that hamper efforts to encourage and support longer working lives.

The online publication of employment tribunal (ET) decisions in England, Wales and Scotland marks a watershed moment, opening up new innovative avenues for legal research, and promoting transparency in labour law decision-making. Drawing on this ‘dataset’, and using age discrimination decisions as a lens to facilitate analysis, this paper reflects on the advantages and limitations of using online ET decisions as a data source to support labour law research. By considering matters of time in age discrimination decisions – both in relation to time limits for bringing a claim, and ET delays – this paper uses innovative empirical findings to map the limits of the individual enforcement model adopted by discrimination laws, and illustrates some of the barriers to successfully bringing a claim for discrimination.

Elder law is often approached in terms of a ‘body’ of law. In this article, I argue for a contextualised and externalised perspective on the ageing individual as the subject of elder law. Elder law relates to the implications of law as an institutionalisation of society seen through the lens of older persons. The aged subject is a contested and differentiated social construct to be studied in relation to an externalised social ‘problem’ and properly contextualised. Whereas the ageing individual in the context of labour law and anti-discrimination regulation turns out to be remarkably young, the specific history of LGBT persons in society comes to the fore in cases where age intersects with a ground such as sexual orientation. The ‘ageing’ worker must thus be understood in relation to work as the dominant distributive order in society, and in relation to institutions and developments associated with work. Due to the role of age as a traditional social stratifier, the prohibition against age discrimination has been given a weaker format than have prohibitions against other kinds of discrimination, and the ban on ageism has failed to achieve a clear legal status. Deficiencies in the measures taken against age discrimination are also evident in their incapacity to address situations where age intersects with other grounds, resulting in a compartmentalised application and interpretation of discrimination bans, leaving vulnerable sub-groups without protection. In sum, elder law is very much a field in process and – although arguing for the added value of a contextualised perspective – it may for the time being suffice to say that ‘elder law is what elder law researchers do’.

Experimentalism is a theory of regulation in which change is achieved via a process of ‘directly deliberative polyarchy’ within an experimentalist architecture. This paper argues that experimentalism offers a normatively desirable model for legal interventions relating to the ageing workforce, and age equality law in particular, and offers new insights into existing UK scholarship on reflexive law. Drawing on qualitative and quantitative data from UK universities, this article considers the extent to which reforms to retirement ages have promoted a form of experimentalism among UK universities. This paper offers concrete suggestions and reforms for how an experimentalist framework could be adopted in this context to enhance regulatory reform.

The UK courts and the CJEU have often treated age discrimination as a less serious form of discrimination. This is reflected in the courts’ reluctance to offer rigorous scrutiny when evaluating whether age-differential treatment is objectively justified under anti-discrimination law. Further, a number of judges have asserted that age discrimination must be understood as different to other forms of discrimination, such as race or sex discrimination. This paper argues that age discrimination is not fundamentally different or prima facie less serious than other forms of discrimination. Age discrimination can undermine the same principles that paradigm forms of discrimination also undermine, including: creating inequality of opportunity by disadvantaging people because of a trait that is outside a person's control; undermining social equality by creating a hierarchy of social status between different groups; violating autonomy by diminishing people's capacity to have control over their lives; and communicating disrespect by conveying that particular groups have a diminished moral or social worth. It follows, contrary to the approach of much of the case law, that the courts should offer rigorous scrutiny of age-differential treatment to identify these harms and only permit age distinctions that are strictly tailored to enhance equality or other important values.

This article draws on Ahmed's (2004) concept of affective economies as a means of critically exploring the nature and consequences of the ‘business case for mature aged workers’: a framework that underpins recent government and corporate policy focusing on extending working lives. Contra to the claims of the business case as wholly rationalistic ‘common sense’ and logical, the article argues that the business case operates discursively by drawing on latent but potent circuits of emotionality. Drawing on a range of government ‘best practice’ resources for employers, we show how the ‘rippling effects’ of emotionality result in particular systems of valuation pertaining to mature aged workers and later life working. In situating these dynamics as important to a broader affective political economy, we argue this may inadvertently undermine current initiatives seeking to promote the retention and recruitment of mature aged workers.

A decisive 2004 fourth term win for the Howard Government and control over the Senate provided the Australian government with a mandate to further deregulate the labour market in the name of ‘flexibility’. This paper uses a critical perspective to challenge the wisdom of neo-liberal market economics as the driving force behind the rapid expansion of non-traditional ‘flexible’ forms of work and the persistence of a deficit model/perspective that continues to devalue the human capital value of older workers. It is argued that these trends will contribute to ongoing under utilisation of ‘older’ labour and intensification of skill shortages, in part, as a result of lack of investment in maintaining human capital. In responding to Australia's rapidly ageing workforce the Howard Government has adopted modest measures designed to counter age based discrimination and encourage workforce participation. However, participation rates among older workers in Australia have remained one of the lowest among Organisation for Economic Co-Operation and Development (OECD) countries. This paper argues that the Government's labour market deregulation policies are reducing the availability of jobs that provide sufficient working conditions and remuneration to make workforce participation attractive. The erosion of employment conditions associated with ‘flexible’ workforce reform leads to underemployment, an employment outcome that often fails to meet the needs of many older workers. More recently, however, the Government has embarked on reforms that appear to provide genuine incentives aimed specifically at attracting workforce participation by older workers, but unfortunately these are by and large confined to those aged 60 years and over.

In this article we explore the importance of ‘everyday discrimination’ and other psycho-social variables for psychological wellbeing, considering differences according to age, gender and socio-economic position. Using employee survey data collected within Australian organisations we explore a statistically reliable model of the relationship between aspects of the psycho-social work environment, psychological wellbeing and job satisfaction. The employee survey was carried out in two phases during mid-2007 and mid-2008 in a national university, two international freight terminals of a large international airline, a national manufacturing company and the roadside assistance division of a motoring organisation. Structural Equation Modelling was used to configure a model including psycho-social factors: respect, support, training, job insecurity and personally meaningful work. Everyday discrimination and consultation with supervisor were considered in terms of their direct effect on psychological wellbeing and job satisfaction and their indirect effect via the psycho-social factors enumerated above. Importantly, this generalised model attempts to describe the interrelations of these factors effectively for various age groups, gender and socio-economic position. We identify age, gender and socio-economic differences in the strength and relative importance of these relationships. A further validation study with an independent sample will be required to verify the model proposed in this article. The implications for the design of workplace interventions concerned with age discrimination are discussed.

In the past two decades the Supreme Court of Canada made apparently contradictory rulings on mandatory retirement. In 1982, the Court ruled that mandatory retirement for firefighters at age 60 violated provincial human rights laws; in 1990, it found that forced retirement for university faculty and others at age 65 was constitutional. An analysis of the decisions shows that the Court relied on the stereotype of older workers as being less competent than younger workers, and failed to provide older workers with protection against age-based discrimination. A number of the key mandatory retirement cases deal with university faculty and may yet have unanticipated consequences, such as strengthening the role of academic tenure. The unwillingness of the Supreme Court to eliminate mandatory retirement means that ad hoc arrangements driven by changing life cycles, employer needs, demographic changes and legislative actions will continue to arise.

Surgical care of elderly persons focuses many of the difficult legal and ethical dilemmas that have arisen in modern medicine. Such issues arise at both macro and micro levels. This paper explores four micro level areas involving physician-patient interaction. These are: informed consent, dying patients, pain relief treatment and medical research, when the patients involved are elderly persons.

The discussion of informed consent includes consideration of refusal of treatment, scope of information, voluntariness, coercion and competency. In particular, the basic presumptions are articulated and variations in the application of these concepts, when aged persons are involved, and justification of such variations, are considered. Within the topic of dying elderly persons, the “living will” and “durable powers of attorney” are discussed. The obligation to provide pain relief treatment can be particularly important in the context of terminally ill and dying persons and it is suggested that there should be a legal obligation to provide such treatment, including in some circumstances, where the treatment could possibly, or even is likely to, shorten life. Finally, aged persons' participation in medical research and the special problems that can be involved in this are addressed.

In conclusion, it is suggested that the greater visibility and identification of old persons needing surgery than of those needing some other forms of medical care is likely to make this an important arena for setting far-reaching precedents regarding humane approaches to, and human rights in, access to and provision of medical care.