Legal loophole allows ageism at work to go unpunished

David A. Whitten, For Financial Post 

Legal loophole allows ageism at work to go unpunished

New employment legislation has created a legal loophole that allows workers over 65 to lose their jobs by the end of the year, without legal recourse.

jivan child / Fotolia.com


Workplace age discrimination appears to be on the rise, particularly in the federal civil service and nationally regulated industries where employees aged 65 or older may find themselves out of a job by the end of the year due to a legislative loophole, with no legal recourse.

Recent amendments to the Canadian Human Rights Act banning mandatory retirement have made such a move possible. Ironically, the changes to the act, made in late 2011, were intended to empower older employees to work longer.

However, those amendments do not take effect until December 2012, and the delay appears to be motivating many employers to get rid of retirement age employees en masse. Federally regulated organizations, including banks, airlines, broadcasters and inter-provincial trucking and shipping companies, are seen to be rushing to impose their mandatory retirement policies before the ban kicks in, making a mockery of the decision by legislators to ban mandatory retirement.

Federally regulated organizations, which include some of Canada's biggest employers, are motivated to terminate employees 65 or older while they still can without incurring human rights liability.

This brazen discrimination illustrates the challenge many employers have to reduce costs, embrace new technologies and satisfy the impatient aspirations of younger employees for promotional opportunities. These performance and inter-generational concerns are so compelling that the protection afforded older employees by provincial human rights codes is being systematically circumvented.

Ontario's Human Rights Code, for example, amended the definition of age to include employees who are older than 65 in 2007. Since then, employers in the province have been required by law to accommodate employees in the 65-plus crowd experiencing age-related performance problems. Subsequent amendments to Ontario's code also permit allegations of age discrimination to be heard in court and employers found guilty of age discrimination are forced to pay damages.

Despite these costly sanctions, many employers are showing a robust enthusiasm for skirting the law and go to great lengths to disguise that intent. A common tactic, for example, is to terminate entire groups of older employees in the name of restructuring and toss in a few younger employees to make it difficult to prove age was the motive.

Another popular approach is to subject an older employee to a difficult and stressful performance review and then play on their fears by offering them a severance package.

Defending against age discrimination requires knowledge of both the law and how the game must be played. Employers must demonstrate that their decision to terminate had nothing whatsoever to do with the age of the employee. If age can be connected in any way to the decision to terminate, the employee will get a favourable ruling, particularly if the decision is rendered by a judge who happens to be in their sixties, as is often the case.

The biggest and most damaging mistake an older employee can make is to deny that a performance-related problem has anything to do with their age. Unfortunately, pride motivates many to vehemently deny that their age has affected their ability to perform, which makes them easy pickings for termination.

For older employees, a far shrewder response is to approach human resources and blame the problem on age, thus obligating the employer to offer assistance to enable the employee to continue in their role. If the decision to terminate is eventually made, age is on the record as the reason, leaving the company obligated to prove in court that it took steps to accommodate to the point of undue hardship, which is both a difficult and time consuming task.

Age discrimination promises to be the dominant workplace issue in the coming years. And the principle of fair and equal treatment for all employees, regardless of their age, must be resolutely defended. Not only is this the right thing to do, it is in the national interest. At stake is the sustainability of the country's pension system. Policymakers attempting to enable Boomers to work longer should be concerned about organizations sabotaging their efforts by unnecessarily truncating careers.

Regrettably, many employers are blind to this new demographic reality.

David A. Whitten is an employment law expert and the founding partner of Whitten & Lublin. He can be reached at david@whittenlublin.com

