Information used to stay prepared for potential retirements
Question: Since mandatory retirement has been abolished, is it a violation of human rights law for employers to document and track an employee’s age as part of a succession planning strategy? I have seen replacement planning charts listing potential successors for a position which include the candidates’ ages. An employee’s age provides useful information about how close that employee may be to retirement. However, don’t all employees have the right to be treated equally without reference to age?
Answer: Human rights legislation across the country prohibits discrimination and harassment based upon various protected grounds, which include age. In Ontario, the term “age” used to be defined, for purposes of the province’s Human Rights Code, to apply to persons between the ages of 18 and 65. In other words, those under 18 or over 65 were not protected from discrimination.
However, in recent years, Ontario and other jurisdictions have revised their approach and have extended the protection to those beyond the age of 65, effectively abolishing mandatory retirement. According to the Ontario Human Rights Commission website:
As an employer:
•You cannot refuse to hire, train or promote people simply because of age-based assumptions.
•You should not target older workers, or other age groups, when it comes to workplace downsizing or reorganization activities.
•You are responsible for making sure that your workplace is free from discrimination, is inclusive, and respects and supports the needs of all its workers, including older employees.
One of the issues that has arisen as a result of the end of mandatory retirement is how employers are to deal with senior employees who are slowing down and not performing as they used to. In the past, employers could often rely upon mandatory retirement to allow the senior employees to continue working and then retire with dignity. Now, they are sometimes forced to deal with performance issues through training and discipline.
This question does not relate to any apparent concerns regarding the performance of senior workers, but simply to succession planning. The idea proposed does not seem to violate the spirit or the wording of human rights legislation. As indicated above, it would be a violation to discriminate on the basis of age. The case law has made it clear that while discrimination involves a distinction on the basis of a protected ground, not all distinctions are discriminatory. In other words, it is possible to treat people differently on the basis of one of the enumerated grounds and not be in breach of the applicable human rights legislation. Bona fide occupational requirements are one exception. However, before one must even embark upon such an analysis, one must consider whether the distinction involved is actually discriminatory.
In this case, the question does not suggest the senior employees will be negatively impacted in any way. Their age will simply be tracked in order to allow the company to plan for the future, as best it can in an era where it will not know with certainty when employees will retire. So long as the “senior” employees are not treated any differently than their younger counterparts as a result of their age, I see no risk of a breach of the applicable human rights legislation. Rather, the proposal set out in the question seems like prudent planning.
Stuart Rudner is a partner in Miller Thomson LLP’s Labour and Employment Group in Toronto. He can be reached at (416) 595-8672 or email@example.com.