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A grey area

Aging workforce could put employers between rock and hard place if faced with poor job performance and age discrimination

By Jeffrey R. Smith

Mandatory retirement is pretty much over in Canada. The baby boom generation is reaching senior citizen status. The birth rate is dropping.

All of these factors are leading to a workforce in which the average age is creeping northward. And with an older workforce comes new concerns for employers.

Employers can’t expect employees to retire at a certain age anymore. If someone doesn’t want to stop working at 65, she doesn’t have to. And this is becoming more common as people fear boredom and perhaps isolation that might come with no longer going to work every day. Also, many people have seen their savings take a hit from economic turmoil, so they are forced to work longer because they can’t afford to lose a steady paycheque.

Age is a protected ground under human rights legislation, which means employers aren’t allowed to discriminate against employees based on their age. But the reality is, as workers get older, they might not be able to do their jobs as efficiently or as well. For certain occupations where safety is an issue, it might still be okay to implement a specific age of retirement. But for others, employers could be stuck with potentially under-performing employees until the employees decide they want to call it quits. Because of human rights protection, if employees like this can’t do their job properly, the employers will likely have to accommodate them by changing duties to keep them employed or put up with decreased productivity.

It’s not always the case that, as someone ages, the quality of work suffers; having that attitude and acting on it would, of course, be discriminatory. And many people are able to be productive workers well in to their 70s, 80s and beyond.

But what is an employer to do in a situation where it’s faced with the reality an older worker isn’t getting it done like she used to and is at a fairly advanced age? Any attempts to coax the employee towards retirement would expose the employer to the risk of a discrimination accusation.

Terminating employment would involve similar risks, as it would be difficult to prove age wasn’t a factor in the decision to terminate. But if age is the reason for someone doing a poor job, shouldn’t the employer be able to do something about it, or at least suggest retirement? Or should employees have the right to keep their jobs no matter how old they are, even if their quality of work could be hurting the employer’s bottom line?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at For more information, visit

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Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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