'It's so ingrained, people don't even realize they're being ageist'

A recent decision from the Ontario Superior Court of Justice has raised the issue of age discrimination. And while the allegations have not been proven – the case was a motion to dismiss – it does provide reminders about the problematic issue of ageism and its liability in the workplace.

Older employees bring a lot of value to companies, with their institutional knowledge and mentoring ability, says Margaret Waddell, partner at Waddell Phillips in Toronto and counsel for the plaintiff.

“My biggest takeaway from this is if they just treat [the employee] properly to begin with — a 30-year employee should have been given a proper severance package that acknowledged his years of service — we wouldn't be in this situation,” she says.

“If you want to avoid big, nasty, ugly litigation, then treat your terminated employees properly.”

This is an important topic — and an important type of discrimination — that needs to be addressed, says Ellie Berger, an associate professor in the Department of Sociology at Nipissing University.

“I think, often, hiring managers or HR personnel aren't considering it as an issue.”

Even some leaders who are older themselves make negative comments about more senior workers, she says.

“It’s almost like it's so ingrained, people don't even realize they're being ageist in some ways, and I think that's part of the whole education piece, to realize what constitutes ageism, and then how it can be harmful.”

Claim of wrongful dismissal for IBM employee

Bruce Maule joined the marketing team of IBM US in 1997; then, 25 years later, IBM US instructed IBM Canada to prepare his termination letter.

In June 2022, Maule submitted a statement of claim for damages for wrongful dismissal and a declaration that IBM Canada discriminated against him on the basis of age. Maule also claimed punitive damages because he alleged his termination was part of a concerted policy of IBM U.S., parent company to IBM Canada, to “cull older executives from its corporate ranks.”

While Maule made some changes to his claim, IBM Canada still wanted the allegations around “systemic age discrimination by IBM US” to be removed. The company felt the pleadings were “irrelevant, overly broad, scandalous or an abuse of the process of the court.”

Subsequent changes by Maule saw the discrimination narrowed to allegations of age discrimination practices in the executive level.

Despite the changes, the Superior Court of Justice for Ontario dismissed IBM Canada’s motion to strike.

The court said there was “no basis to find that the Systemic Age Discrimination Pleadings are irrelevant or that they are bare and unprovable allegations that should be struck as scandalous pleadings.”

‘Getting rid of older employees’

IBM felt the claim should remain focused on whether there was discrimination with respect to Maule himself, not whether he was part of larger systemic age discrimination, says Waddell.

“The associate judge said no, the claim of systemic discrimination was properly included in the claim, and there were proper particulars to demonstrate that this could well be part of something bigger than just discrimination against Mr. Maule.”

Her client believes that the only reason IBM terminated him was “because they have a predisposition towards getting rid of older employees,” she says.

“And for him, it is a matter of significant concern that this is going on, and that's not just against him, but more broadly in the business.”

What’s behind ageism?

Bias around age is something that is “ingrained” in people from childhood, says Ellie Berger, who is also an adjunct associate professor in the Department of Health, Aging & Society at McMaster University and the Department of Sociology at Laurentian University.

“We're sort of bombarded with all of these media images that are negative about older people, and even children's literature; for example, with the wicked old witch and those kinds of things,” she says.

“It becomes ingrained in people, and it ends up being reflected in all facets of life — but particularly the workplace. So I think there's subtle design going on, and often behind closed doors.”

Even older workers themselves hold some of those negative perceptions, says Berger.

“There's research proving most of the stereotypes are wrong. So I think it's lack of awareness and knowledge, often by employers, but also coworkers can be inadvertently ageist towards their coworkers.”

Those stereotypes extend to benefits, with the assumption that older workers are more costly — when actuaries in previous cases have shown otherwise, she says.

“I think that's something in particular that employers should focus on is to, not tie benefits to age.”

The ageist stereotypes also apply when it comes to training and technology, says Berger. Younger generations may be more comfortable with the tech because they grew up with it, but older workers can still learn.

“As long as you have similar training, older workers are just as capable learning that technology; people just learn in different ways as they get older,” she says.

“There's the stereotypes around lack of interest in learning technology, but then also lack of ability, so I think those two definitely intersect a lot.”

As a result, many older workers are often overlooked for training programs, says Berger, which can make it more difficult to find jobs if their skills are out of date.

It’s also important to note that even people aged 45 or younger can experience age discrimination — especially in certain industries such as tech — so “really, it's the people that are also mid-career that are now considered too old for their job,” she says.

“Within a workplace, often employers will recognize things like experience, dedication, but as soon as they're forced with decisions like hiring or even who to pick for a promotion, that's when some of the ageism seems to come into play.”

Claims of age discrimination at work

Age discrimination in general is hard to prove, says Waddell, particularly if it’s said to be systemic. But in this case, “the past has already been paved by litigation that's gone on in the U.S…. so we'll be able to look to and draw on what's already gone before in order to try and make the case for Mr. Maule here.”

The onus of proving discrimination is always on the person who's making the allegations, she says.

“It’s up to Mr. Maule to establish that there was discrimination and, in his case, whether it's systemic or not. That said, the documentary and evidentiary production obligations are quite broad and IBM is going to have to produce a lot of documentation dealing with this issue, including what it's already had to produce in the U.S.”

When it comes to age discrimination, a big problem in proving it’s happening is cost, says Berger, “especially if you're unemployed — it's hard to have the money to hire a lawyer and fight against the discrimination.

“But even if you are still employed, then you don't want to cause any conflict because you're still going to the workplace every day.”

In addition, ageism is a somewhat new type of discrimination, making it hard to prove, she says.

“People still see it as subjective, in some ways; but, really, we can look at these kinds of hiring statistics, and you can also look at comments... employers’ language, ageist language is a big thing.”

That can include comments such as “We're looking for energetic employees” or “recent graduates,” or telling someone they're overqualified, when these people are willing to take a job even if they are overqualified — and they still don’t get it, says Berger.

Recently, an Edmonton worker’s age discrimination complaint related to her firing was dismissed as being based only on speculation and no merit.

Working against ageism and age discrimination at work

Given the stereotypes and misperceptions, how can incidents of ageism and age discrimination be lowered?

Education is the strongest avenue to pursue, says Berger, citing initiatives such as anti-ageism training and DEI strategies.

“It's still not very common, where people actually consider ageism as something to explore,” she says.

“We sort of accept all the other ‘isms’ — we shouldn't be sexist, racist — but ageist seems to be more acceptable. So I think, definitely, we need more anti-ageism training and particularly focusing on some of the age stereotypes that are false.”

It’s also important for employers and HR to be monitoring metrics around hiring, promotions, training and employee retention when it comes to the age of workers, says Berger.

“If an individual manager is not selecting someone for training, it's going to go back to these higher-level statistics and seeing if that is just a fluke or is it something that is happening often,” she says.

“I think there needs to be more accountability for employers… if it's something that is more systemic.”

Another important step? Emphasizing the strengths of older workers that people often forget, such as loyalty, dedication, institutional knowledge and mentorship opportunities, says Berger.

“It definitely helps bridge the gap and encourages people to want to hire and train older workers.”