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Freedom from Discrimination

By Denise Workun on January 8, 2009

Published in Reprints - Fifty-Five Plus Magazine  

Has it been suggested to you recently (other than by your spouse!) that it was time you retired? Have you applied for a job, only to be told it's not for you because the company needs someone with a "lot of energy" and "career potential"? Do your requests to participate in training programs offered at work get turned down because, "at your age, you don't need training"? Were you passed over in a job competition because you're "too experienced"?

If this sounds all too familiar, you may have been the victim of "ageism", or age discrimination. According to the Ontario Human Rights Commission, ageism is an attitude that makes assumptions about older persons and their abilities, and puts labels on them. Ageism is also a tendency to view and design society on the basis that everyone is young. Age discrimination is a consequence of ageist attitudes.

Under the Ontario Human Rights Code, individuals are protected against discrimination in employment on the basis of their age. This protection extends to job advertising, the hiring process, and promotional and training opportunities. As of December 12, 2006 the code's protections against age discrimination were extended to protect employees against mandatory retirement.

Within the workplace, human rights legislation provides older workers with the additional right to be accommodated in relation to a disability or the need to care for an ailing spouse. Such accommodations could include flexibility in work scheduling, and individualized work arrangements such as telework or part-time work.

If you have been the victim of age discrimination, there are various remedies potentially available to you. To start the process you must file an Application with the Ontario Human Rights Tribunal within one year from the date on which the last act of discrimination occurred.

If you are successful in proving to the tribunal at a hearing that you have been discriminated against on the basis of your age, and that you have suffered a financial loss or mental distress as a result, then you will be entitled to recover your lost income, pension losses, lost benefits, and other expenses you have had to incur as a result of the discrimination. You may also be entitled to recover "general damages" for the pain and suffering you have experienced as the result of being a victim of discrimination.

The tribunal also has broad powers to fix systemic problems. Consider the following example of systemic age discrimination provided by the Ontario Human Rights Commission in its Policy on Discrimination Against Older People Because of Age.

Example: A company decides that it needs to reduce its workforce by 10 per cent. Human resources reviews the files of all workers and identifies all workers over the age of 60. Each one of them is called in for a meeting with management and told that they are nearing retirement age and should accept an early retirement package so that younger persons won't lose their jobs. They are warned that if they do not do so, their position may be selected for elimination in which case they will simply receive severance and lose the opportunity to receive the early retirement package. Under these circumstances, some older workers feel compelled to accept the offer despite the fact that they were planning to work longer.

In this fact scenario, a tribunal would likely find that the systemic targeting of older workers for early "retirement" amounts to age discrimination. In addition to awarding damages to an individual applicant who has suffered losses as a result of this discriminatory corporate initiative, the tribunal could also order that proactive measures be taken to ensure that the company's early retirement policy is not coercive and is in compliance with human rights law. So, as suggested in the commission's policy document, the employer could be required to: Define the eligibility criteria for the voluntary retirement program and share them with all staff, irrespective of age, through a neutral medium such as a written document, giving a response deadline and contact who can provide information so that those who qualify and are interested in the option can then decide if they wish to follow up on the offer, without any pressure from management.

Ensure that no links are made between acceptance of the package and job loss.

If the workforce is being downsized, indicate what the criteria will be for selecting the jobs that will be eliminated and give employees assurances that eligibility for the voluntary exit program will no way influence decisions about job loss.

Aside from human rights protections against age discrimination, older workers have all of the same protections available to other workers under the common law. For example, if an employee's employment is terminated at age 70, all of the legal principles governing that termination remain valid and subject to a court's interpretation and application. In other words, there is no magic age at which an employee's employment may be terminated with legal impunity.

However, under the common law, much of an employe's entitlement to compensation on dismissal is based on the premise that a dismissed employee needs compensation to serve as a financial bridge to new employment. Every dismissal case is assessed on its particular facts. So the fact that an employee is 70 years old and has no demonstrated interest in pursuing re-employment will certainly be relevant to a court’s assessment of that employee's entitlement to compensation.

The bottom line is that, with very few exceptions, older workers have the same rights to employment, fair treatment in the workplace, and compensation on dismissal, as they did in their younger years. Don't settle for less!

Denise Workun is a partner with the Ottawa law firm of Nelligan O'Brien Payne LLP LLP. She specializes in human rights and employment law.

[This article was originally published in the July/Aug 2009 issue of Fifty-Five Plus Magazine.]