By Olev Edur
You can’t be refused a job or fired because of your age, but that doesn’t mean it doesn’t happen
We’re living longer than ever before, but what to do with all this new-found time? For an increasing number of Canadians, it seems the answer is work.
According to Canada Revenue Agency (CRA) 2022 Income Statistics (based on all tax returns filed in 2020), 14 per cent of the seven million Canadians then aged 65 or older—some 985,000 people—were still earning employment income in 2020; if you count only the 2.15 million in the 65 to 69 age bracket, 29 per cent, or about 628,000, were still working.
In addition, the CRA stats show that 6.7 per cent of those aged 65 or older (some 470,000 people) and 9.3 per cent of those aged 65 to 69 (200,000 people) declared business or professional income in 2020, meaning that, allowing for some overlap, the number of seniors aged 65 over older still actively earning income is likely about 20 per cent overall and 38 per cent among those aged 65 to 69.
While some of these people are working out of financial necessity, past studies have shown that many simply enjoy feeling actively involved, being a part of something and making a contribution. Whatever the case, older workers can face some extra hurdles when it comes to seeking or keeping their employment, despite the law being on their side. So what are your rights when applying for or already working at a job?
“The rules are unequivocally the same in all provinces when it comes to age discrimination and mandatory retirement,” says Lior Samfiru, a Toronto-based partner at Samfiru Tumarkin LLP, which has employment-law offices in British Columbia, Alberta, and Ontario. “There aren’t any discrepancies among the provinces.”
Nevertheless, while some employers welcome the experience and skills that a senior can bring to the job, others may not be as accommodating. So, if you are applying for a job, what kinds of questions might be indicative of age discrimination? What are the warning signs? And what are your options for redress?
“It’s always difficult to show that you didn’t get a job because of age discrimination,” Samfiru says, “but any questions that touch on age should be off limits, unless age is relevant to the job—for example, if the company’s market is teenagers. Otherwise, age is irrelevant. Questions such as ‘How long do you plan to be working?’ are not appropriate. Neither is ‘Do you think you’ll be able to fit into a young workplace?’ There’s no reason age should affect your ability to fit into a young workplace, and any questions that try to determine your age are inappropriate.”
Of course, some positions are obviously age-sensitive—policemen, for example, or firemen. And some requiring heavy labour, such as in the construction trades, may be unsuitable, although it should be for you to decide whether you’re up to the task or not.
“You have to distinguish between a person’s age and their physical abilities,” Samfiru says. “Some people at age 60 are more fit that other people at age 40. It’s okay to focus on the requirements of the job, as long as the same thing is asked of everyone, not just seniors. Questions that in and of themselves relate to the work are acceptable. Employers can ask for a fitness test, as long as it’s being asked of everyone—as long as it’s tied to the job because of safety concerns, for example, so as not to put yourself or others at risk.”
And although it may be tricky to argue that a decision was indeed due to age, it’s not impossible. “If you think you’ve been turned down for a job because of your age, the remedy available is to file a complaint with your provincial human rights agency; in Ontario, for example, that would be the Human Rights Tribunal,” Samfiru adds. “The employer would have to demonstrate that the decision not to hire you wasn’t related to age. And there have been quite a few cases in which an employer has been found liable for age discrimination.”
As for working conditions, employers often require you to sign an employment agreement, and they can put whatever terms they want into it, such as requirements to work overtime when necessary or limits on the amount of severance pay, but they can’t say it’s only for older employees. “That doesn’t mean they can do it successfully, though,” Samfiru says. “The agreement has to be drafted in a certain way, and if it’s not worded precisely, you may be able to get around it.”
If you’re already working, you cannot be forced to retire, and you cannot be fired without cause. If you’re caught stealing from the company, for example, or aren’t doing your job properly, then you can be shown the door. But in the latter case, the employer must make efforts to help correct the problem. “If the employer finds out that there are age- or health-related issues, they have to consider accommodating the employee, such as providing assistance, changing their hours, or altering their duties,” Samfiru says. “And if the problem is due to a disability, the employer has an obligation to accommodate that disability.”
Part-Time and Full-Time
There is no difference between the rights of full-time and part-time workers. “From a legal standpoint, an employee is an employee,” Samfiru says, adding that both full-time and part-time staff are entitled to the same treatment, including severance pay. “But although they may both be entitled to eight months’ pay, that eight months will amount to less for the part-timer than the full-time employee.”
Finally, an employer may try to suggest you’re being hired as a “contractor” rather than an “employee,” perhaps to avoid paying benefits such as health insurance or severance pay or to avoid all the paperwork that may be required for employees. But Samfiru points out that there are fairly clear legal distinctions between the two.
“We see this all the time, because contractors can be cheaper than employees for employers,” he acknowledges. “If you’re working for several clients and spend part of your time looking for clients, then you’re a contractor. If you’re working for one employer, then you’re an employee. Even if you signed an agreement stating otherwise, it doesn’t matter. If it looks and acts like a duck it must be a duck. Similarly, if it looks and acts like an employee, it must be an employee. Otherwise, we would have a world full of burger-flipper contractors.”
However, Samfiru cautions that there may be tax implications if you are reclassified. “If you’ve been paying tax as a contractor and are subjected to a CRA audit that finds you’re actually an employee, you could become liable for fines and back taxes. But of course, you’d also have certain rights, such as overtime and holiday pay and severance pay.”