Company requires managers to be at least 21 years old
Question: Our company policy requires that someone must be at least 21 years old to be in a management role. Is this discrimination?
Answer: The company policy is discriminatory. It allows the company to withhold employment opportunities from an employee based solely upon that employee's personal characteristic (age) without regard to her individual merits. This type of distinction is the essence of discrimination.
While discrimination provisions are different across Canada, all prohibit age discrimination. In Alberta and Ontario, age is defined as being “18 years or older,” limiting the protection to some extent. In British Columbia, the age is 19 or older.
Exemptions from the age discrimination provisions also vary from jurisdiction to jurisdiction. The B.C. code expressly protects a bona fide scheme based on seniority. The Manitoba Human Rights Code provides that the general prohibition against age discrimination does not prevent an employer from following provincial legislation regulating the employment or occupation of persons under the age of majority.
The first step in assessing the legitimacy of a policy is to determine whether there is any express authorization for the kind of discrimination in the policy in the applicable human rights legislation. It is likely the policy would stand or fall on the basis of whether it could be shown that the standard — attainment of the age of 21 — was a bona fide occupational requirement for a management position within the company.
The Supreme Court of Canada established a three-part analysis to test the legitimacy of such requirements in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights. Under this analysis, an employer must prove:
•It has adopted the standard for a purpose rationally connected to the job.
•The standard was adopted in an honest and good faith belief that it was necessary to the fulfillment of that purpose.
•The standard is reasonably necessary to accomplish that legitimate purpose.
Even though a policy may have been adopted for the legitimate purpose of ensuring management staff have the requisite education, experience, maturity and leadership skills to succeed in a management role, it is doubtful it would hold up at the third stage of the analysis. While youth and inexperience may typically co-exist, the company's purpose could be easily achieved by focusing on employees' actual management attributes rather than their age. It is this focus on actual attributes instead of stereotypical assumptions that anti-discrimination legislation hopes to achieve.
For more information see:
•British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CarswellBC 2730 (S.C.C.).
