There is no question that cases involving older employees are becoming a trend. While you might expect, perhaps stereotypically, that these cases would be about accommodation, they are in fact about hiring older employees. Consider the following recently decided discrimination cases: In Reiss v. CCH Canadian Limited, 2013 HRTO 764, the Ontario Human Rights Tribunal considered the case of a 60-year-old former lawyer. Mr. Reiss applied for a position of commercial legal writer at CCH, but he was not selected for testing or an interview. Instead, Mr. Reiss was advised that his application was “on hold” while two other candidates were being interviewed. When Mr. Reiss followed-up with a human resources consultant with respect to his application, he was advised that “it [was] looking like they are moving towards candidates that are more junior in their experience and salary expectation.” When the case was brought before the Human Rights Tribunal, the Tribunal held that telling Mr. Reiss that CCH was looking at more “junior candidates” in experience and salary expectations was “suggestive of a stereotyped assumption that an older person would necessarily want a higher salary and would therefore not be a good candidate.” While the Tribunal noted that CCH did not necessarily discriminate on the basis of age by not interviewing Mr. Reiss, it did award $5,000 to Mr. Reiss “for injury to dignity, feelings and self respect” due to the discriminatory assumptions made by the human resources consultant.
Similarly in Cowling v. Alberta Employment and Immigration, 2012 AHRC 12 (CanLII) the Alberta Human Rights Tribunal awarded a 67-year-old Labour Relations Officer 5 years of back pay, $15,000 in general damages and reinstatement as a result of a finding of age discrimination. Ms. Cowling was employed with the Government of Alberta for 8 years through four sequential contracts. One year prior to the renewal of her fourth employment contract, Ms. Cowling was notified that her contract would not be renewed primarily because the Government was planning to restructure the position and downgrade the level and responsibilities of the job. Ms. Cowling was advised that the position would be redefined to ensure services “over the long term”, and that it would be a “growth” or “developmental” position. Ms. Cowling was not told at any time that she did not have the qualifications for the position. When Ms. Cowling reapplied for the position at the end of her contract, the Government declined to re-hire her. The Alberta Human Rights Tribunal was not convinced that the restructuring was for legitimate business reasons, holding that the evidence supported the reasonable inference that Ms. Cowling’s age was a factor in her ability to secure the now long-term “developmental” or “growth” position. As such, Ms. Cowling made out a case for age discrimination.
Reiss and Cowling are part of only a handful of Canadian cases in which a finding of age discrimination is made. However, our neighbours to the south have many examples of older employees who have been on the receiving end of discriminatory treatment. In his excellent blog, Richard Cohen of Fox Rothschild LLP, keeps a running tab of these cases. They include a 76-year-old security guard in Missouri who successfully claimed at the Federal Appeals Court that he was fired because of his age based on his supervisor’s comment to him that he “needed to hang up his Superman cape.” Mr. Cohen also provides a list of simple phrases that have equated to age discrimination, including: “ancient,” “old school,” “set in his ways,” “not a proper fit for the “new environment,” “lacking in energy,” “not being up to date,” “sounds old on the telephone,” “is like a bag of bones,” and “a little long in the tooth.”
We suspect given the aging of the Canadian workplace, we will see more age discrimination cases in the future.
What does this mean for employers?
- Test for age discrimination. Before making decisions regarding an older employee, employers should apply the three-part test for age discrimination by determining whether their decision leads to: differential treatment (i.e. was there substantially differential treatment, either because of a distinction, exclusion or preference?) based on an enumerated ground (i.e. was the differential treatment based on age?) resulting in discrimination in a substantive sense (i.e. does the differential treatment impose a burden upon, or withhold benefit from an individual?). The case law is also clear that age need not be the primary reason for differential treatment in order to be discriminatory; it just needs to be a factor.
- Avoid (indirect) discriminatory language. Employers should carefully manage the messaging provided by them or on their behalf to employees with respect to the employee’s capabilities. Age discrimination can be inferred from the use of indirect language such as referring to other employees as “more junior” or implying that older employees are less capable, are nearing the end of their careers, or are in any way a financial burden on an employer.
- Avoid discriminatory assumptions. Whether direct or indirect, employers should avoid basing decisions on their assumption of the capabilities, and mindset of older employees. As the case law highlights, employers will be faced with a heavy onus to justify that employment-related decisions are made on legitimate business grounds, and not on prohibited grounds of discrimination. Even where age is a small factor, the entire decision can be tainted by discrimination.