That’s the good news. The bad news is that antidiscrimination rules can create new problems for older workers.
By Olev Edur
The good news for Canadians who hope to keep working past the once-common retirement age of 65—a growing number of whom are doing so from either need or desire—is that mandatory retirement is no longer allowed in Canada. You can’t be forced out the door just because you’ve reached a particular age.
The not-so-good news is that employers are therefore becoming more and more wary of hiring older workers, and age discrimination in the workplace seems to be rising as a result.
In recent years, all provinces and territories, as well as the federal government, have enacted or altered their human rights legislation to address workplace age discrimination.
“All the human rights acts in Canada now prohibit mandatory retirement,” says Kevin O’Neill, a labour, employment, and human rights lawyer at the Fasken Martineau law office in Vancouver. “Protection doesn’t stop at age 65.”
Prohibitions against discrimination based on age once applied only to those between 18 and 64. “Now,” O’Neill says, “the Human Rights Code defines ‘age’ as 19 or older, so you can’t say to someone at age 65, ‘Okay, now you have to retire, so off you go.’”
Nor can employers discriminate in other ways to compel an aging worker to leave or refuse employment based on age. Ontario’s human rights legislation, for example, specifies that:
– you have the right to be offered the same chances in employment as everyone else,
– you cannot be denied a job, training, or a promotion, or be forced to retire because of your age, and
– you have the right to the same level of services as everyone else, such as medical treatment and other health care.
In other words, you have the same rights as any other worker. Of course, this doesn’t mean you can never lose your job. People of any age can be let go at any time “with cause.” And even absent such justification as theft or negligence, an employee can be terminated at any time if given sufficient notice or severance pay in lieu of notice. It just can’t be done because you’ve turned a certain age.
THERE ARE EXCEPTIONS
An exception to the mandatory retirement prohibition is known as the Bona Fide Occupation Requirement (BFOR). This would apply primarily where the demands of the job are such that it couldn’t effectively be done by someone of an advanced age.
“Firefighters or airline pilots, for example, can still be subject to this exception,” O’Neill says. “Other types of work may be included, too, but it’s pretty rare. You need some pretty good scientific evidence to back up a mandatory retirement plan.”
Employers can also implement a mandatory retirement program when continued employment would be detrimental to the employer. The employer would need to demonstrate that accommodating older employees would negatively affect safety, employee morale, or company costs, that it would interfere with other employees’ rights, or that it would be disruptive to collective agreements.
“Where a program requires mandatory retirement, employers must show that their mandatory retirement program was developed in good faith and is rationally connected to the nature of the work, and that it would be impossible to develop a non-discriminatory program without undue costs or health and safety risks,” Ontario’s Human Rights Commission literature states. “For example, an employer would be required to show that the objectives of its mandatory retirement program could not be achieved through individual testing and assessment of employees.”
Similarly, British Columbia’s Human Rights Code states that, in order to impose mandatory retirement, employers must be able to show that they adopted the requirement for a purpose rationally connected to the performance of the job and in an honest belief that it was necessary to the fulfillment of that legitimate work-related purpose, or that they would experience undue hardship by accommodating individual employees.
Furthermore, employers can’t use diminished capacity as an excuse for terminating employment.
“They can’t discriminate on the basis that at, say, age 69, you are performing noticeably less efficiently than you were at age 60,” O’Neill says. “They would have to accommodate someone if he or she were to be hit by a car; by the same token, age, per se, becomes a disability to be accommodated, up to the point of undue hardship on the part of the employer.”
“If an employer can show legitimate grounds for dismissal, there’s nothing wrong with that,” says Stuart Rudner, an employment lawyer with Rudner MacDonald LLP in Toronto. “But if it happens to affect only the four oldest workers in the company, the employer would have to prove that it was done for reasons other than age.”
PENSION PLANS CAN DIFFERENTIATE
While employers can no longer use age to justify forced retirement (except where BFOR or hardship applies), pension plans can continue to make distinctions based on age. This is because when a pension plan is set up, the actuarial calculations must be based on age in order to make sense. For example, all pension plans must pick a termination age in order to calculate how much must be paid in premiums every year to ensure that the plan will be adequately funded at a certain dollar level.
Nevertheless, pension plans can’t force you to retire. They can only tell you that at a certain age, you’ll be entitled to X amount of pension benefits. But the fact that you now may continue working indefinitely throws a spanner into the calculations and raises many questions.
For example, can you continue contributing to your pension after age 65 and build a larger benefit entitlement? How do employers calculate how much more people should receive, if there’s no way of knowing how much longer they’ll work? Or do they simply pay the pre-established benefit and provide no further opportunity to contribute?
“The question now is, does a pension plan trump human rights legislation?” O’Neill says. “Or should there be some kind of trade-off if you keep working? These issues have yet to be resolved.”
ENFORCEMENT VARIES BY PROVINCE
If you feel you’ve been subjected to age discrimination, you have options for pursuing a claim. UK-based website agediscrimination.info, a source of statistics and information on age discrimination in various countries including Canada (access to the site depends on the browser you use), notes that enforcement mechanisms and remedies differ depending on province.
“Some jurisdictions [such as Alberta, Manitoba, and Nova Scotia] allow complaints to a Human Rights Commission, which will investigate the alleged incident of age discrimination and determine whether to refer the complaint to an adjudicative process,” the website advises. “Other jurisdictions [British Columbia and Ontario] allow an employee to apply directly to the administrative tribunal, which will accept, screen, mediate, and adjudicate the complaint.”
You can also initiate a civil lawsuit alleging discrimination on the basis of age. “Often, age discrimination claims are pleaded with other actions, such as claims for wrongful dismissal,” the website continues. “The party will seek additional damages for the age discrimination as part of the civil claim.”
Using Ontario as an example, the website notes that Human Rights Tribunal of Ontario (HRTO) can award financial compensation for money lost or spent due to discrimination, as well as for “injury to dignity, feelings, and self-respect.” Non-monetary judgements can include orders for the employer to hire or reinstate the person, provide a promotion, and remove any “harasser” from the workplace; in short, the employer must put the complainant in the position that would have existed in the absence of discrimination.
In addition, HRTO can require the employer to change hiring practices, develop non-discriminatory policies and procedures, implement appropriate education/training programs, post the Ontario Human Rights Code in the workplace, and even publish an extract of the HRTO decision in the corporate newsletter.
EMPLOYERS ARE BECOMING WARY
While all of this is clearly good, workplace age discrimination may in fact be increasing as a result of these new antidiscriminatory human rights laws.
In a 2014 article in The Globe and Mail, reporter Jeff Gray wrote: “With mandatory retirement for most workers gone, coupled with a demographic bulge and low returns on fixed-income investments, more older workers are putting off retirement and staying in the workforce than ever before. And employment lawyers say they are seeing an increasing number of age-discrimination cases as a result.”
Rudner confirms this development: “There are no statistics, but anecdotally, yes, a lot of employers have become wary of hiring older workers because they don’t have an end date. Before, when a worker turned 65, they could give them a gold watch and then they’re gone. Now if they hire someone at, say, age 63, they can’t let them go at 65.
“Even if a 64-year-old worker was slowing down, the employer knew that in another year, they’d be gone, so they let them continue working and then retire with dignity at 65,” Rudner says. “Now employers have no idea how much longer they’ll have to keep them, so they’re more reluctant to hire older employees. We’re definitely seeing more of that.”
The Globe article also noted that the courts are now more likely to award larger severance amounts to older workers who have less opportunity for re-employment: “For example, an Ontario court [in 2013] awarded a 70-year-old machine operator an additional 22-month severance, or $69,000, after 20 years of work. And in 2012, a 72-year-old civil servant in Alberta was given her job back and awarded several years of back pay after winning an age-discrimination case over a move not to renew her contract when she was 67.”
“The issue is a legal minefield for employers,” Rudner said at the time.
DIFFICULT TO PROVE DISCRIMINATION
While these larger awards and the power of human rights commissions and courts to order redress may seem like a boon to older workers, it’s still tough to make a winning case, because the evidence can be elusive.
“The challenge is that it’s almost always hard to prove discrimination,” Rudner says. “An employer may have made comments like, ‘You’re getting older,’ or, ‘We’re adopting a youthful strategy,’ but if you lodge a complaint, they’ll just deny it.”
As a result, if you’re working and are concerned about age discrimination, start documenting everything.
“Be proactive and watch for the signs,” Rudner says. “If you suddenly start getting warned about your performance, for example, do whatever you can to document your performance and show that it isn’t changing.”
If you’re looking for work, research companies beforehand and look for those that have a track record of hiring older workers. You can also check the Canadian Legal Information Institute website (canlii.org) for prior actions a company may have had for age discrimination. There are plenty of good prospects available, as evidenced by the growing number of older workers already out there, but you still need to tread carefully.
“It’s ironic that these new laws have led to the unintended consequence of creating additional discrimination,” Rudner says.