Age Discrimination in the Workplace

  • December 27, 2018
  • Anoop Kalsi

A recent Globe and Mail article explored the growing number of human rights complaints involving workplace age discrimination.

Companies cannot fire or refuse to hire an older employee on the basis of age. Yet, they may find a way to make decisions that nonetheless lead to age discrimination. These factors that disproportionately affect older workers may include, but are not limited to:

  • Career aspirations;
  • Proximity to retirement;
  • Ability to learn new skills; and
  • Propensity to work overtime.

Employers sometimes use mass terminations or downsizing as a reasoning for letting older employees go. Employers may include termination of a few younger employees when taking this approach to give the appearance that the layoffs were impartial.

Another tactic employers sometimes use is to subject an older employee to a stressful performance review, thereby encouraging them to resign or retire. It is particularly important to be vigilant of these tactics, as employees are often given false reason for termination. Employees should be aware that this may lead to minimal severance packages, containing clauses that may prevent them from later suing the employer.

Human Rights Tribunals take these matters very seriously, placing the onus on employers to justify their decisions as bona fide. Under section 11(2) of the Ontario Human Rights Code, this means employers must demonstrate that the “needs of a group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs…”. Undue hardship on the employer can include factors such as increased costs, outside sources of funding, and health and safety requirements.

The Globe and Mail states that nearly “20 per cent of all workplace human-rights claims filed in Ontario allege age discrimination”. Age discrimination is on the rise, and it’s important for older employees to know their rights. The Globe goes as far as stating that age discrimination may become the next #MeToo movement.

David Baker of bakerlaw wrote a paper for the Law Society of Ontario (formerly, Law Society of Upper Canada) regarding this issue in 2015. You can read this paper here (link).wrongful

You can read the Globe and Mail article on Age Discrimination here (link).

If you think that you have been wrongfully terminated on the basis of your age, please contact Anoop Kalsi at ext. 230 or akalsi@bakerlaw.ca for an initial intake

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