Retirement isn't for everyone

In previous generations, a career was a linear progression. An employee started with a company likely out of high school (or possibly some post-secondary education) and stayed with that same company for roughly four decades.

When they reached the golden age of retirement (often age 65), they were given a gold watch, a celebratory luncheon, and shown the door. Changing companies was rare, and working past “retirement age” was practically unheard of.

Of course, times have changed significantly in recent years. Workplaces have become more competitive, often scaling up or downsizing their workforce depending on their business needs. Employees rarely stay with the same company for their entire career, and are no longer afraid to seek better opportunities elsewhere.

Perhaps most notably, with the elimination of mandatory retirement age across the country, older workers are no longer being shown the door as quickly.

This can make it difficult for employers that want to engage in long-term or succession planning. It can also be awkward when older workers don’t perform at the level they used to. In the past, employers would tolerate the situation, knowing that the employee would be retiring soon, and allow them to end their career with dignity. Now, they are often left considering the performance management of a senior worker, which is difficult for everyone.

What does the law say?

As one might expect, there is clear law against age discrimination in the workplace. While several provinces once had mandatory retirement ages, those were eliminated roughly 15 years ago, and so there is no legal cap on when a person can no longer work.

Moreover, age discrimination is protected across the country under human rights law. Human rights codes both federally and provincially protect employees from being discriminated against based on a variety of protected grounds, including their age. This means that, legally, a worker cannot be singled out, picked on, or discriminated against based on their age.

In fact, the only time that such conduct is legal is on the other end of the spectrum. Aside from minimum working ages across the country, there are also some job characteristics that might require workers to be of a certain age. If a job requires an employee to possess a full driver’s license, for example, and such a license is a bona fide occupational requirement, then an employee who is too young to obtain that license would not qualify for the role.

What sorts of discrimination do employees endure?

While employers may be able to prohibit some employees because of their youth, that does not mean that an employee cannot handle certain roles automatically because of their age. Assuming that an employee cannot lift a certain weight, or be on their feet for a certain length of time because of their age is in itself discriminatory, and is one of the subtle examples of discrimination older employees regularly face.

Older employees are regularly subject to inappropriate jokes and teasing, or even outright bullying and harassment simply on account of their age. Repeatedly questioning an older coworker as to when they plan on retiring, or making jokes about their age or any health issues that they may face as a result, is harassment, and is not appropriate in the workplace. In a more collegial atmosphere, these jokes may be good natured, and the employee may even join in, but that does not make it OK and it does not make it acceptable to all employees.

With workplaces moving increasingly online, it may be difficult for some older workers to adapt to new technologies, but this is not at all a universal rule. While some older workers may take longer adapting to new machines or new software, others may be technologically savvy and have no issues whatsoever. This can be true of workers of any age, and discounting an employee’s capabilities based on their age is yet another common form of discrimination. Employees of all ages should be offered the tools that they need to succeed in their role.

What can employers do about age discrimination?

Employers need to be aware, and to make their teams aware, that age discrimination (and discrimination in any form) is not acceptable. Employers are required to enact workplace harassment policies, and can use these policies to outline that unwelcome comments, inappropriate remarks, hurtful jokes etc. are prohibited in the workplace and can be met with punishment.

Employers should also be careful in how they handle older employees and their age, even innocently. Asking an older employee repeatedly about their retirement plans, or speaking openly about them “slowing down” may not be done maliciously, but it singles out those employees unfairly based on a protected human rights ground.

There are delicate ways to have conversations about succession planning issues, but this must be done with strategy and great tact. Employment lawyers and HR professionals are well-equipped at guiding employers through these conversations so as not to inadvertently discriminate against these employees.

Older workers bring a tremendous amount of talent and experience to the workplace that employers should not take for granted. Treating them differently simply on account of their age is not only poor form — it is also against the law.