aging and discrimination - hrpa · • golden handshake aging and discrimination. termination. 31...

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Aging and Discrimination

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• The number of “older workers” on the rise in Canada• Report on The Impact of Aging on Labour Market Participation Rates


The “Older Worker”

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• Workers over 45 more likely to be laid off• Longer periods of unemployment• Training lasting more than 25 hours considerably less• Hiring practices favour younger workers


The “Older Worker”

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• “An automatic cognitive component” • Older workers are

• less productive• less committed• not dynamic or innovative• unreceptive to change• unable to be trained• costly


Stereotypes

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Statistics Canada has gathered research showing:• Intellectual capacity and the ability to do routine tasks is not influenced by age

• Older workers often wish to remain connected to the workforce

• Older workers tend to be very loyal and are less likely to switch jobs• Older workers want a challenging environment and are eager to learn new things


Reality

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• “Ageism”:• Socially constructed way of thinking about older persons;• Structuring society based on assumption everyone is young;

• “Age Discrimination”:• Treating persons in unequal fashion due to age in a way that imposes a burden

upon, or withholds a benefit from, an individual;• Differential treatment based on stereotypes that are offensive to human dignity;


Ageism and Age Discrimination

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“Because, in our society, old age tends to be less associated with wisdom and tranquility and more with infirmity and dependence, we fear it. We may be more likely to discriminate against elderly people, in a futile attempt to distance ourselves from what will inevitably occur to each

one of us.”

--Justice L’Heureux-Dubé (Dickason v. University of Alberta)[1992] 2 SCR 1103 at para 1173


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• Unique ground of discrimination:• unlike certain personal characteristics (such as colour of skin, race or sex), age is constantly changing• no clear distinction between discriminators and those who are discriminated against

• …but impact on individual is the same as other forms of discrimination

• All individuals have a basic right to be evaluated based on his/her unique abilities


Age Discrimination and Human Rights Protection

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• currently understood as a narrow legal concept:• prevailing analysis centers on a comparison between older and younger

workers rather than on the actual harm to those workers• age discrimination is more likely to be identified when the distinction is direct

(rather than indirect)• age discrimination is viewed as a less critical ground of discrimination, one

which everyone will potentially experience at some point in their lives


Age Discrimination and Human Rights Protection

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• Age is relative (encompasses range of ages and abilities)• Age intersects with other bases of discrimination (claims are interrelated)

• Age and physical and/or mental disability• Age and family status (ie: being care provider)

Age DisabilityAge Family Status


Conceptual Challenges

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• Possible health conditions that might impact an aging workforce:


Age and Disability

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• Discrimination constituting a violation of the Code based on “the intersection of age and disability”

• 57 year old worker• Asked employer to find her a place to sit (she was fatigued) after standing for

a long time• Employer’s comment: "if old people can't do the work, it's time for young

blood to come and do the work”• inferred that employee was too old to handle the job


Budd v McDougall (2016)

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• What about ailments that aging workers experience that fall short of a disability? (ie: general decline in health)

• Unclear (See: Pnina Alon-Shenker, “The Duty to Accommodate Seniors Workers: Its Nature, Scope and Limitations,” Queen’s Law Journal, 2012 (38) 165-208 at 181. )


Age and Disability

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• Alon-Shenker• Broader, more principled perspective• requires that each individual be treated in a manner that respects five

substantive principles of equality: • individual assessment, • equal influence,• sufficiency, • social inclusion, and • autonomy


Dignified Lives Approach

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• Family status covers individuals providing eldercare for ailing parents • There will be an increase in family status claims as an increasing

percentage of the population ages and needs to be cared for


Age and Family Status

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• Judicial review of Canadian Human Rights Tribunal decision• Was argued that family status does not include eldercare obligations• Federal Court reaffirmed that the ground of family status is broad and

flexible in scope• Using the Johnstone test was

not a reviewable error


Canada v Hicks (2015 FC 599)

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Canada v Johnstone (2014 FCA 110)Canadian National Railway Company v Seeley (2014 FCA 111)

Family status encompasses family obligations that:•are immutable;•are not possible to neglect without engaging liability; and•do not constitute personal choice



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To make out a prima facie case, most show that:

1.Elder is under the employee’s care and supervision

2.Legal responsibility is engaged as compared to personal choice

3.Employee has made reasonable efforts to meet the obligation through reasonable alternative solutions

4.The workplace rule interferes in a manner that is more than trivial or insubstantial with fulfillment of obligation



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• 27 year old employee was primary caregiver for his disabled mother• ZRV insisted that Devaney be present in the office during regular office

hours and raised concerns about Devaney’s frequent absences and late arrivals

• Devaney was of the view that most of his work could be done remotely from home

• As a result of his failure to keep regular hours at the office, Devaney was terminated for cause


Devaney v ZRV Holdings (2012 HRTO 1590)

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• HRTO found that ZRV’s strict attendance policy had an adverse impact on Devaney as a result of his family responsibilities

• ZRV failed to engage with Devaney about his particular needs

• Devaney was awarded $15,000 in general damages


Devaney v ZRV Holdings (2012 HRTO 1590)

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• Recruitment process

• On the Job • Performance management• Training• Promotions

• Termination

• Retirement


Discrimination in the Employment Cycle

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• Inferring discrimination• BC Human Rights Tribunal extended Tribunal’s comments in Mezghrani v

Canada involving race based discrimination to age-based discrimination• Recognizes that allegations with regards to age-based discrimination need only to

be “reasonably inferred”• Recognizes the indirect nature of age discrimination• Rozario able to demonstrate age was at least a factor in her termination:

• Performance reviews prior to dismissal were good• Complainant was 64 years old at the time• No reasons were provided for her dismissal


Rozario v Manufacturers Life Insurance (2017)

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• Recruitment strategies themselves might be inadvertently focusing on younger workers

• Interviewer might rely on stereotypes relating to older workers:• Lack of “career potential”• “Too much experience” or “overqualified”• Diversified background• Gaps in employment• Too specialized (i.e. too expensive to retrain)


Recruitment Process

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• Test for prima facie case of discrimination in hiring• Applicant was qualified• Applicant not hired• Considerably younger candidate who was no better qualified obtained the

position


O’Brien v Ontario Hydro (1981)

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• Canadian Human Rights Tribunal ordered employer to produce resumes of other applicants to the complainant in order to allow complainant to make a case of indirect age discrimination

• Complainant claimed that Videotron’s hiring practices favoured younger applicants


Malenfant v Videotron S.E.N.C. (2017)

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• Employer cannot terminate employment based on age stereotypes

• However, an employer might terminate employment where there is declining performance

• Regardless of age, the same performance review and management processes need to be followed for all employees

• The employer may have a duty to accommodate


On the Job: Performance Management

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Watson v CAW, Local 27 (2011 HRTO 4476)

“The Code does not prohibit an employer from applying its performance management policies and practices to older workers. Actions or standards that are arbitrary or that depart from standard policy or practice may raise an inference that a prohibited ground was a factor in how the employee was treated. However, the issue is whether the employee was subjected to differential or negative treatment, at least in part, because of a prohibited ground.”

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• The employer has a duty to accommodate to the point of undue hardship

• Examples of types of accommodation• Health and safety consideration• This is not about finding the perfect or most ideal solution • The employee needs to engage in the accommodation process• It is important not to entertain stereotypes about what someone of a

particular age is capable of doing!


Performance Management: Duty to Accommodate

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• 53 year old employee had been working for company on and off for 15 years

• Employee was terminated along with another employee aged 61• Employer argued that they had been terminated due to a work

shortage and poor performance • A few months prior, employer had hired younger employees• Employer provided no evidence that it had spoken to employees about

work performance


Top Line Roofing (2013 BCHRT 306)

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• Observed decline in employee’s abilities

• Issues• Undocumented performance issues• Failure to follow performance management policies• Layoff as “rejuvenation” of workforce• Lump-of-labour fallacy• Golden handshake


Termination

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In order to rely on job performance issues to terminate an older employee, it is crucial that:•the performance management tool is objective and rational;•employees are evaluated consistently and regular performance reviews are held;•when necessary, constructive criticism and warnings are given; and •performance management issues are clearly documented


Termination

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• Failure to follow performance management policy• “would not have utility or would not achieve results”• “energies…would be better expended on a new and younger employee”• Although employer’s concerns around work performance were

legitimate, termination tainted


Clennon v Toronto East General (2009)

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Markoulakis (2015 ONSC 1081)• Employee was 65 and had worked at company for his entire 40-year

career• Argued that he had only ever worked for one employer, was close to

retirement, and job market was scarce• Employee was awarded 27 months’ pay in lieu of notice

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Mandatory Retirement• End of mandatory retirement unless…• Age as a Bona fide occupational requirement (BFOR)• Onerous Standard;• Requires Evidence of Undue Hardship regarding:

• Health and Safety;

• Operational Requirements

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Retirement•Policy based expectations on “normal retirement” date• Voluntary vs. Mandatory• Informational Discussion regarding options• Incentive-based voluntary discussions

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Schram v Avon-Maitland (2010 HRTO 24)• Employer’s can ascertain their employees’ intentions with respect to

retirement;

• Inquiries into an employee’s retirement plans and retirement date is not discriminatory

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• “…the combined effect of the various discussions about the advantages of retirement and the difficulty the applicant might experience in the interview process”

• Tribunal found there had been age discrimination• Important difference between providing information to an employee

about retirement and encouraging retirement


Deane v Ontario (MCSCS) (2011)

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• Employee’s contract was repeatedly renewed • When employee was 67, she was informed her contract would not be

renewed• Her position was being replaced with a more junior role• She was invited to apply, but she did not get the job• Employer argued that the decision was related to succession planning• Employer did not admit age was a factor


Cowling v Alberta (2012 AHRC 4)

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• Tribunal ordered:• Employee to be reinstated on one year contract• Her age could not be a factor in future decisions not

to renew her contract• Salary compensation for the time she was out of work (5 years)• General damages in the amount of $15,000


Cowling v Alberta (2012 AHRC 4)

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Early Retirement• Risks

• Because target older workers may increase risk• Cannot be coercive• Generous package does not provide defence

• Mitigation• Define eligibility criteria• Share with all staff through neutral medium• No link between acceptance and job loss

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Watson v CAW, Local 27 (2011 HRTO 4476)• Downsizing• Employee offered early retirement package• Claimed offer was discrimination• As a component of “overall workforce reduction strategy”

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Adrian Ishak(416) 597 [email protected]

aging and discrimination - hrpa · • golden handshake aging and discrimination. termination. 31...

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