Ageism not easy to circumnavigate

Employers need to be careful during hiring, dismissal to avoid claims
By Janice Rubin
|Canadian HR Reporter|Last Updated: 05/30/2014

Ageism is one of the last and best-hidden manifestations of discrimination in the North American workforce. In a post-mandatory retirement age, 17 per cent of Canadians expect they will never be able to afford to retire, according to a 2013 survey of more than 1,000 people by HSBC.

It has become increasingly important for employers to be aware of attitudinal barriers in the workplace that may lead to a jump in age discrimination claims in 2014 and beyond.

Whether during the hiring or dismissal process, employers need to pay close attention to several factors to guard against possible age discrimination claims. Given the trend in recent case law, it’s fair to expect employers will be increasingly called upon to demonstrate that employment-related decisions in relation to “senior” employees are made on legitimate business grounds.

Looking back, 2013 saw a rise in age-related lawsuits — one of which was Reiss v. CCH Canadian Limited. Peter Reiss, a 60-year-old former lawyer, applied for a position as a legal writer but was not selected for an interview. Instead, his application was put on hold.

The HR department advised him it was “looking like they are moving towards candidates that are more junior in their experience and salary expectation.”

But the Ontario Human Rights Tribunal held that these comments were a suggestive or stereotyped assumption that an older applicant would require a higher salary than a junior employee. Consequently, Reiss was awarded $5,000 in damages for injury to dignity, feelings and self-respect.

Another example of ageism came out of Alberta in 2012 in Cowling v. Alberta Employment and Immigration. Joan Cowling, a 67-year-old employee who had been with the government of Alberta for eight years, came to the end of her contract.

At that point, her position was redefined to ensure services “over the long term.” The role was also revised with a focus on “growth” and “development” and while Cowling was qualified for the position, the government declined to hire her when she reapplied.

In this case, the Alberta Human Rights Tribunal ruled the restructuring was not for legitimate business reasons and Cowling’s age was a factor in her ability to secure a long-term “developmental” or “growth” position.

While such legal faux pas may seem obvious in retrospect, these attitudes are often so deeply ingrained both individually and culturally that they are hard to identify. Employers should be aware of what age discrimination looks like and how to avoid these types of legal problems.

To ensure business decisions are made on legitimate grounds and to avoid age discrimination claims, employers should keep in mind three key points:

Will it pass the smell test?: Before terminating an older worker or failing to hire him, ask if there was differential treatment based on age. If reviewed by an external body, will the decision pass the smell test?

This is particularly true if a group of senior workers is affected by an employment decision at the same time.

Avoid (indirect) discriminatory language: In the United States, a sizeable number of legal decisions find employers discriminate against older workers because of the language they use. Avoid language such as “set in his ways,” “looking for someone more junior” or “lacking in energy” that communicate, often unintentionally, an employee’s older age was at play.

Resist discriminatory assumptions: Employers should not make any assumptions or decisions about the mindset and capabilities of older employees, directly or indirectly.

Common assumptions — such as an older worker will be less engaged, will require huge accommodation or will be absent from the office more because of illness — are untrue.

Janice Rubin is co-founder and managing partner at law firm Rubin Thomlinson in Toronto. She can be reached at (416) 847-1814 or ca.linkedin.com/pub/janice-rubin/2/901/a58.

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