When anti-discrimination policies discriminate

To some, age is just a number. For many, however, it’s a curse.

Breaking into the legal sector has never been easy. Top grades and employee malleability are viewed as sacrosanct, but for mature entrants, this attitude is often career-breaking.

Research by the Royal Society for Public Health in 2018 found ageism to be the most commonly experienced form of prejudice and discrimination, both in the UK and across Europe.

Yet age is the only protected characteristic under the Equality Act 2010 that gives companies a full defence to discrimination in certain circumstances. 

Older workers can bring with them an abundance of maturity and experience, which recent graduates have not usually been able to amass by the time they enter the market.

For some companies, the combination of older and younger workers can be the yin and yang of commercial success.

Yet three hidden ‘ageism-enablers’ lurk in the shadows: Namely, AI candidate screening, blind recruitment, and grade inflation.

AI candidate screening

Like it or not, algorithms permeate our lives, but AI screening in recruitment takes this to another level.

Machines designed to sift and reject applicants based on pre-set criteria are becoming the norm. 

Void of any human emotion, this method can mean you get terminated before you even get started. And what if the AI designer has a bias – conscious or unconscious? How do you police that?

Many now worry such unregulated and untested systems are breaking the law, with seemingly, no ‘persons’ responsible. Yet their impact can be devastating for those in minority groups, like older workers.

In my case, I was informed by UCAS that even my university grades were too old to be converted into UCAS points (the format required for many applications).

Once again, in trying hard to treat everyone the same, the system succeeds in discriminating.    

Blind recruitment

Let’s just say you are lucky enough to have a human consider your CV.

Blind recruitment sees CVs submitted, stripped of all obvious references to age, race, disability and so on. So, the recruiter is only seeing your skills and attributes, excluding any negative bias that may be associated with those personal details. A perfect solution for preventing ageism, right? Wrong.

For mature candidates like me, concealing age, even when removing the specifics, is almost impossible.

There is the polytechnic university I attended which was on the cusp of conversion in the early 90s; the number of years of work experience; even the types of hobbies enjoyed. Age unwittingly oozes from the page.

A research paper by David Neumark, economist at the University of California, found that discrimination started as soon as recruiters became aware of a candidate’s age.  With many job applications now starting online, that realisation might come sooner than you think.

And once the age of a candidate was discovered, the research paper found the job offer rate for older candidates was 68% lower than that of the younger ones.

Grade inflation

And then there is grade inflation. This distortion is even more damaging in the legal sector, where positions are often only open to those with firsts or 2:1s.

The higher education regulator in England, the Office for Students (OfS), found four in five graduates are now getting firsts or 2:1s.

In the last eight years, the number of people graduating with a first has increased by more than 90%, causing the OfS to add that such inflation “threatened to erode public confidence” in the education system.

What if, like me, your university grade pre-dates the start of grade inflation in the mid-90s?

Many older workers achieved the equivalent of the modern-day firsts and 2:1s when they obtained a 2:1 or a 2:2, many years ago. The phrase ‘comparing apples with oranges’ springs to mind.

It’s time for a change

What makes individual workers fantastic is that they are, in fact, individuals. But in a bid to ensure equality for all, no matter what, recruitment has become ‘too equal’.

In the twelve years since the Equality Act was born, it’s become clear that what is required is a change in mindset, not the law.

If businesses chose instead to see the added value and knowledge older workers can bring, there would be less need for anti-ageism policies.

Thankfully, the shift has already started.

When the then-lord chancellor, Robert Buckland QC MP announced he was raising the mandatory retirement age for the judiciary to 75, he said the change would mean “industry can retain their invaluable experience, while ensuring that judicial roles are open to a wider pool of talent”.

If it is good enough for judges, it is certainly good enough for others in the industry. So, it’s high time the rest of the sector followed suit.

For those who choose to ignore this issue, it will not go away. Ageism will have its sights on every one of us, from every sector. If not today, then tomorrow.

For one thing in life is guaranteed: we are all going to get older.

Views expressed in our blogs are those of the authors and do not necessarily reflect those of the Law Society.