'It needs to be based on a business reason that's not related to their age or disability': lawyer
The Alberta Human Rights Tribunal has dismissed complaints of age and disability discrimination by two workers after other workers were recalled from layoff before they were during the COVID-19 pandemic.
When selecting people for temporary layoffs, recalls, or termination, it’s not uncommon for this issue to come up for employers, according to Justin Turc, a labour and employment lawyer in Calgary.
“We often see that where a portion of the workforce is reduced – or in this case where there's a recall of some employees - there are instances where human rights allegations made alleging that the employer has considered improper criteria,” he says.
“Age is often one of the improper criteria that's alleged, with the idea of an employer preferring to keep people who might in their mind have a longer runway of their career – it may be well-intentioned and they're not doing it to be malicious, but it's still offside.”
Temporary layoffs
The workers were early childhood educators for ESG Child Playcare Centre, a daycare centre in Calgary. The first worker, 64, was hired in 2012 and the second, 58, was hired in 2011. By 2020, they were level 3 employees at ESG, which were supervisors who were paid more than level 1 and 2 employees. There were nine rooms in the daycare and each one required a level 3 employee.
The first worker was assigned to the nursery room for babies and sometimes worked in the toddlers room. The second worker was assigned to the room for children aged 3 to 4.5, which was the only room in which she had worked while with ESG.
In March 2020, the daycare closed because of the pandemic. All ESG employees were temporarily laid off on March 16 and, according to the workers, told that they would be recalled on a seniority basis.
A couple of months later, ESG announced that it would partially reopen on June 1. Although the company initially thought it would recall 14 of 26 employees, only seven were initially recalled as there were limits on the number or people who could be in the building. ESG was told it would only need one level 3 employee for the entire facility and the assistant director was a level 3, so the company decided to recall level 1 employees first as they were cheaper.
Neither of the workers were recalled, as there were no children in the second worker’s class returning and no babies for the first worker’s room returning.
ESG’s assistant director called the workers in late May to ask if they would like to return. However, she called back later to say that the owner didn’t want staff over 50 years old returning, although neither worker confirmed this with the owner. The assistant director later said that she only conveyed the health protocols for returning and didn’t mention age, noting that other employees over 50 returned.
Five more employees were recalled in September. This included two level 3s, neither of whom worked in the same room as the workers. Neither worker was wanted to be flexible – the first worker only wanted to work with babies and the second only with toddlers.
More recalls
The workers received emails purporting to recall them in October, but the first worker wasn’t prepared to go back because of how she had been treated. She also didn’t think the offer was sincere because it had been originally sent to the wrong email address.
In November, ESG recalled one more employee who was a level 2 in a toddler room. Although the second worker could have worked in that room, there were still no children from her original room returning. In addition, management felt that the second worker was argumentative and they wanted a peaceful workplace.
The workers filed human rights complaints alleging that ESG discriminated against them on the basis of age. They later added the ground of disability, claiming that ESG didn’t want them back because they had hypertension, noting the assistant director’s caution about health protocols. The workers argued that, despite their seniority, younger or less qualified staff were recalled ahead of them, which they alleged was due to their age and hypertension.
ESG maintained that its recall decisions were based on business requirements such as the number of returning children, the roles needed to accommodate them, and the need to bring back cheaper employees first to keep costs down during a difficult financial time for the company.
“When you're considering implementing measures such as a layoff and recall, employers should make sure that it's based on legitimate business reasons,” says Turc. “That's really what saved ESG - they were able to point to hiring back staff that were cheaper when they were feeling the pinch from the pandemic.”
Prima facie discrimination test
The tribunal noted that to establish a prima facie case of discrimination, the workers had to show they belonged to a protected category, experienced an adverse impact, and that their protected characteristic contributed to the adverse impact. The tribunal confirmed that, while both workers’ age and hypertension constituted protected grounds under the Alberta Human Rights Act and the lack of recall was an adverse impact, the evidence didn’t demonstrate that the workers’ protected characteristics influenced ESG’s recall decisions.
According to the assistant director and the owner of the daycare, initial re-employment prioritized lower-level staff due to financial constraints and low enrolment, particularly among younger children. The recalled staff filled roles not previously held by the two workers and they were needed to manage specific age groups where attendance had resumed.
The tribunal also found that, while both workers believed age influenced the recall decision, this was speculative. The assistant director and other recalled staff provided testimony that no such age restrictions were enforced. The daycare owner, who was 69 years old at the time, refuted any age-based decisions in recalling employees, citing financial and operational requirements as primary factors.
“Having a process that the employer was able to articulate and explain why they recalled the individuals in the order they did, and those reasons being legitimate from a business perspective and not having to do with age or their disability, that at the end of the day carried it for ESG,” says Turc. “The vast majority of [discrimination] cases will come down to that question [the third part of the discrimination test], not whether there was an adverse impact or someone is disabled.”
The tribunal determined that neither of the workers’ age or disability influenced ESG’s staffing decisions. Instead, the evidence indicated that the daycare’s recall decisions were based on cost efficiency and staffing needs based on returning enrolment figures and health protocols.
Discrimination claim based on speculation
The tribunal dismissed the workers’ complaints, concluding that there was no evidence to support the claim of discrimination based on age or disability in the delayed recall process.
Employers must be careful in making staffing decisions when affected employees have human rights grounds, says Turc.
“If an employer is selecting a portion of the workforce to terminate, lay off, or recall, it needs to be based on business reasons that they can articulate - whatever it is, it needs to be based on a business reason that's not related to their age or their fact that they have a disability,” he says.
“Where it gets tripped up potentially is if [a protected ground] is one of the factors considered - it doesn't need to be the main factor, but if it was one of the factors considered, it can be a problem.”
“And for employers who engage in that type of process, there needs be some checks and balances, frank conversations, and documenting of the reasons why those individuals were selected instead of others - and ensure that managers aren’t inadvertently considering improper factors,” adds Turc.
Proof for staffing decisions
It's particularly important to be able to articulate and show proof of the basis for staffing decisions given the length of time it can take for a human rights complaint to proceed, according to Turc.
“How does an employer articulate and explain who they selected and why, four-to-seven years later? That could be difficult,” he says. “Whether you have spreadsheets that explain why you retained some people and didn't retain others, or memos - some sort of documentation or explanation on file to which you can refer - that could be very helpful.”
“You might not get a complaint until a year after you made your decision, and then it could be six to seven years until an adjudicator makes a decision - so how are you going to prove years later that your method was appropriate?”
See Almario and Ramos v. ESG Child Playcare Centre, 2024 AHRC 121.
