Working in shades of grey

With no more mandatory retirement and a labour shortage, age discrimination is the latest potential landmine for employers with an aging workforce

Society’s perception of age, especially old age, has drastically evolved since the enactment of the various human rights legislations throughout Canada. In the past, mandatory retirement was the standard, perhaps from fear of not having jobs available for the younger generation and the perceived shortcomings of aging workers. In recent years in Canada and in Europe, the trend has been on the phasing out or elimination of mandatory retirement provisions in most provincial jurisdictions.

Discrimination against younger workers

In Commission des droits de la personne (Québec) v. Ville d’Aylmer, the city of Aylmer, Que., had hired a 14-year-old student to perform lawn mowing and ancillary work. When the city realized it had imposed a minimum age of 16 for that type of job, it fired the youngster. He filed a complaint with the Quebec Human Rights Tribunal. The tribunal dismissed the complaint and accepted the arguments of the city to the effect that a minimum psychological maturity is necessary to operate the dangerous tools. To impose a full psychological evaluation of 14- and 15-year-olds’ maturity, in order to minimize the discrimination, would have constituted an undue burden on the employer. The tribunal accepted the minimum age was a bona fide occupational requirement.

In Zurich Insurance Co. v. Ontario (Human Rights Commission), a young single male driver was charged higher car insurance premiums rates than young single female drivers, young married male drivers or any driver over 25. The Supreme Court of Canada considered the system of classification used throughout the insurance industry left no choice to Zurich Insurance but to apply the classification. However, the court encouraged the insurance industry to review its classification in order to lessen the apparent discriminatory criteria.

Discrimination against older workers

The vast majority of case law concerning discrimination on the basis of age relates to old age.

In Montreal Newspaper Guild, Local 111 and The Gazette, a division of Southam Inc., a reporter at the Montreal Gazette applied for a position as TV critic. The newspaper preferred a younger applicant of minority descent. The complainant was successful in her grievance for being discriminated against because the employer preferred a younger ethnic applicant. The arbitration tribunal was not convinced the exclusion of older applicants was necessary or legitimate.

Many cases concerning mandatory retirement have reached the Supreme Court of Canada.

One of the most famous cases is McKinney v. University of Guelph, in which eight professors and a librarian complained of being forced into mandatory retirement. The crux of the case relied on whether universities constitute governmental bodies subject to the application of the Canadian Charter of Rights and Freedoms. The court concluded they were not. The court then held that the mandatory retirement constituted a reasonable limit, especially in a “closed system with limited resources.”

Other similar cases, including Harrison v. University of British Columbia, pointed to the fact that mandatory retirement could be justified and constitute a reasonable limitation to the prohibition of discrimination on the basis of age.

Specific fields of work can also warrant mandatory retirement. Police officers, firefighters and airplane pilots were put to retirement at the age of 60 in Large v. Stratford (City), Cooper v. Canada (Human Rights Commission) and Moose Jaw (City) v. Saskatchewan (Human Rights Commission). Once again, the Supreme Court of Canada considered mandatory retirement at an earlier age could be found justifiable and legitimate.

Over the last few years, many provincial jurisdictions, including Ontario, British Columbia, Saskatchewan, Newfoundland and Labrador have phased out or eliminated the mandatory retirement provisions.

Changing view of older workers

Two main factors have contributed to the shift in perception of older workers. The first is the growing awareness of discrimination and an unwillingness to raise barriers to opportunity. The second factor, and perhaps the most compelling, is the fear of an unfulfilled growing economic need for skilled labour throughout Canada.

As baby boomers reach the age of retirement, many of them have come to realize they do not have enough money to live on and they miss the action of the workplace. From a citizens’ standpoint, it’s feared there will not be enough people to pay for the retirement of the majority.

On the other hand, employers are struggling to hire much needed workers and they want to benefit from the experience and knowledge of older workers.

Strategies for employers

Generation Y and older workers both want more recognition and flexibility from employers.

Employers should consider offering adapted measures to retain or hire older workers, such as: part-time work; unpaid leaves of absence; progressive retirement; mentoring of younger employees; continuous education to keep the older workers up to speed with information technology tools; and flexible work hours.

Many of those new measures should be very carefully drafted so as not to constitute impediments or obstruction to the management right of employers. Some may also be found in employment contracts, in which case employers may want to consider entering into special agreements with older workers with a fixed term (but not mandatory retirement) so eventual replacements can be effectively planned.

For more information see:

Commission des droits de la personne (Québec) v. Ville d’Aylmer, J.E. 94-718 (Que. Human Rights Trib.).
Zurich Insurance Co. v. Ontario (Human Rights Commission), 1992 CarswellOnt 25 (S.C.C.).
Montreal Newspaper Guild, Local 111 and The Gazette, a division of Southam Inc., D.T.E. 2004T-624 (Arb. Trib.).
McKinney v. University of Guelph, 1990 CarswellOnt 1019 (S.C.C.).
Harrison v. University of British Columbia, 1990 CarswellBC 764 (S.C.C.).
Large v. Stratford (City) Police Department, 1995 CarswellOnt 796 (S.C.C.).
Cooper v. Canada (Human Rights Commission), 1996 CarswellNat 1693 (S.C.C.).
Moose Jaw (City) v. Saskatchewan (Human Rights Commission), 1989 CarswellSask 471 (S.C.C.).

Thierry Carrière is a senior associate at Gowling Lafleur Henderson LLP in Montréal, practicing in employment and labour law.

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