Mentoring and career planning not open to employees over the age of 35
Question: Our organization has a “Young Leaders Program” for employees under 35 to partake in mentorship programs and career tracking/planning. Anyone older than 35 is not able to participate. Would this type of age barrier be considered discrimination, particularly if it would have the potential of helping employees advance their careers?
Answer: Discrimination based upon age is contrary to human rights legislation, such as Ontario’s Human Rights Code. Such discrimination exists where an employee experiences differential treatment during the course of her employment on the basis of age, as was the case in the Supreme Court of Canada decisions in A. v. B., and Brooks v. Canada Safeway Ltd., and the Ontario Court of Appeal decision O.N.A. v. Orillia Soldiers Memorial Hospital. The threshold for establishing a prima facie case of discrimination is low, as the Ontario Human Rights Tribunal determined in Touseant v. Thunder Bay (City) and Sharma v. Wheeltronic.
The Young Leaders’ Program confers a benefit on employees under 35 that is not available to older employees due to their age. As such, older employees have a prima facie claim of age discrimination against the employer under the code.
If in Ontario, the employer may justify the age discrimination under s. 14 of the code, which provides for the implementation of “special programs” that are designed to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunities, notwithstanding the fact that access to these programs may be restricted to a select group of individuals. Section 14 operates as a defence to a prima facie case of discrimination.
In Horn v. Canada (Attorney General), a federal government program that provided assistance with summer employment to students between the ages of 15 and 30 was held by the Canadian Human Rights Commission (CHRC) to constitute a “special program.” The CHRC dismissed a complaint by a 42-year-old student who was denied access to the program. The Federal Court of Appeal upheld the CHRC’s decision, given that the purpose of the program was to “reduce and eliminate a disadvantage suffered by young people with respect to employment by improving employment opportunities.”
Similarly, in Broadley v. Steel Co. of Canada, the Ontario Board of Inquiry found providing an extended vacation to employees older than 61 with 25 or more years of service with the employer discriminated against younger employees. However, the extended vacations qualified as a “special program” under the code because they assisted older employees with the transition into retirement.
The facts in Horn and Broadley are not identical to those of the present case. However, the tribunals recognized the disadvantages faced by younger and older people when looking to build and end their careers, respectively. Programs that assisted individuals with these transitions qualified as “special programs.” The Young Leaders’ Program helps young employees develop and plan their careers and transition into the workplace. As such, there is a strong argument that it constitutes a “special program” under the code.
In Ontario, organizations can apply to the Ontario Human Rights Commission for the designation of a special program. The commission will review the program and determine whether it qualifies, or what amendments will need to be made in order to qualify. “Special program” designation will enable the organization to avoid the investigation of complaints from older employees about the Young Leaders’ Program. However, should a complaint be made in the absence of a “special program” designation, the Human Rights Tribunal may nonetheless find the Young Leaders’ program qualifies as a “special program.”
For more information see:
•A. v. B., 2002 CarswellOnt 3554 (S.C.C.).
•O.N.A. v. Orillia Soldiers Memorial Hospital, 1999 CarswellOnt 28 (C.A.)
•Brooks v. Canada Safeway Ltd., 1989 CarswellMan 160 (S.C.C.).
•Touseant v. Thunder Bay (City), 2009 HRTO 2066 (Ont. Human Rights Trib.).
•Sharma v. Wheeltronic, 2009 HRTO 2055 (Ont. Human Rights Trib.).
•Horn v. Canada (Attorney General), 2005 CarswellNat 1420 (F.C.)
•Broadley v. Steel Co. of Canada (1991), 15 C.H.R.R. D/408 (Ont. Bd. of Inquiry).
