Age Discrimination

Mar 31, 2015

By Melanie Reist, Lawyer

With longer life expectancies and the end of “mandatory retirement” the Canadian workforce is aging.  

It is increasingly common for employees to delay retirement and continue working well beyond age 65 – the age at which workers historically were expected to retire and leave the workforce.  For a variety of reasons workers are choosing to continue to work and employers are having to grapple with age in all aspects of the employment continuum from hiring to the costs of accommodating older workers and/or the liability when making the decision to end the employment of an older employee.

Human Rights Hiring / Placements

In Reiss v. CCH Canadian Limited, an employer was directed to pay $5,000 as compensation for age discrimination.  The applicant, Mr. Reiss was a lawyer in his 60’s when he responded to a posting on Workopolis for one of three writer positions in CCH’s commercial department.  Mr. Reiss had learned at a job seminar some strategies to assist candidates over 45 looking for work, including omitting certain information from one’s curriculum vitae.  When he applied for the CCH job, he did not include the date of his call to the bar or dates of his earlier jobs.  He did this deliberately to avoid hi-lighting his age.  In some of the email communications internally at CCH, Mr. Reiss’ years of practice experience were hi-lighted.  There was also some concerns that he had not been forthcoming regarding his total professional work history.  When Mr. Reiss inquired about the status of his application, he was advised that the employer was “moving towards candidates that are more junior in their experience and salary expectation”.  Mr. Reiss brought an application alleging age discrimination relying on section 9 of the Ontario Human Rights Code which provides “no person shall infringe or do directly or indirectly, anything that infringes a right under this part”.  While there was no evidence of direct discrimination, the adjudicator held that Mr. Reiss had established some evidence to support his contention that CCH’s decision making was influenced by age discrimination.

In Tearne v. Windsor (City), Gary Tearne, a 64 year old with 30 years janitorial experience was offered employed with the City as a part-time arena attendant.  The offer was conditional upon a police and medical clearance and successful completion of a strength and agility test.   On two occasions, Mr. Tearne attempted the strength and agility test but was unable to complete it due to an accelerated heart rate.  The Tribunal held that the test resulted in an exclusion or restriction of his ability to participate in the testing process, and ultimately to work as an arena attendant for reasons related to his age.  During the hearing, expert witnesses suggested that the test discriminated against older workers.  Ultimately, the City was not successful in establishing that the standard adopted in the testing was reasonably necessary to accomplish the goal of an arena attendant being able to do his/her work safely.  Further, the City did not show that it could not accommodate individual capabilities and differences without incurring undue hardship.  Mr. Tearne was awarded $10,000 as compensation for injury to dignity, feelings and self-respect as well as lost wages from the date of the conditional offer of employment (26 months).  The Tribunal directed the City to place Mr. Tearne in the job and to administer such pre-employment testing as it considered necessary to comply with the Code.

Discussions About Succession Planning and Retirement

In the Ontario Human Rights Tribunal decision ofDeane v. Ministry of Community Safety and Correctional Services, a 59 year old applicant alleged that she had been discriminated against on the basis of age.  The applicant alleged that she was identified as a person who was going to retire and that all management decisions affecting her were premised on that assumption.

The Tribunal agreed with the applicant and found that the combined effect of several discussions with the applicant about the advantages of retirement and the difficulty she might experience in the interview process that was about to unfold as a result of a reorganization within the department was all with a view to getting the applicant to step down and retire.  As such there was a finding that she had been treated differently in employment because she was an older person who was eligible for retirement.

Not all instances of differential treatment will constitute discrimination under the Code.  In particular, the Tribunal has said that it is not necessarily discriminatory to treat an employee differently once the employee has announced a retirement date.  For example if an employee informs management of an intention to retire in 6 months, it would be reasonable and appropriate that management take the information into account in planning for the future.  (For example, it would not be discriminatory to deny access to training programs for an employee who is scheduled to retire in the foreseeable future)

Discrimination may arise however when an assumption is made that because of an employee’s age the employee is likely to retire imminently.  Treating the employee as if he or she is going to retire when the employee has no plans to can infringe a person’s Code protected rights.  

While merely providing information about retirement options is not discriminatory , where the communication is found to have been with the intention of persuading an employee to retire and leave, it may be a message to the older employee that they are no longer valued and as such discriminatory. 

Common Law Notice

Aside from human rights considerations, employers who make decisions to end employment of older workers, still have the ordinary statutory and common law obligations of notice, pay in lieu of notice and severance, (in the absence of an enforceable termination clause in an employment agreement limiting their common law liability).

At common law, a factor in determining the appropriate period of notice is age.  While one might think that the notice period for employees who are beyond 65 years of might be less as they are likely contemplating exiting the workforce, our courts have not seen it that way. 

In recent court decisions long term employees in their 60’s, 70’s and even into their 80’s have been awarded notice periods ranging from 18 to 26 months.

It is important for employers to recognize these obligations when addressing issues and possible terminations of older members of the work force.  The failure to do so, could result in increased liability including allegations of age discrimination, bad faith conduct, particularly where an employer seeks to pressure an older long term employee to leave employment with a view to avoiding a significant severance obligation.

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