Discrimination in the workplace is unfortunately more common than one might expect and may be based on the age of a senior employee and the desire to promote younger employees. Can one clearly label the attitude of certain managers towards an employee of a certain age as an act of discrimination? In a recent case, it was determined that intention to discriminate is not necessary in order to find that someone has discriminated against an employee based on age.

On March 20 2012, in a case between the Canadian Union of Public Employees, Local 675 (SCFP 675) and Radio-Canada ("CBC"), arbitrator Maureen Flynn declared the demotion imposed on a 60 year old employee to be discriminatory.

Monique Lebrun was 60 years old at the time of the events and employed as an advertising consultant in domestic sales by Radio-Canada. She managed accounts worth 8 million dollars and worked with various ad agencies. Her performance evaluations reflected that she met or exceeded the objectives set for her position.

In late November 2007, CBC proceeded with a restructuring which entailed eliminating two advertising consultant positions. The incumbents were demoted to the position of internal sales representative. CBC asserted that its decision was based on the lack of willingness of the employees to canvas new customers.

Ms. Lebrun, one of the incumbents, was demoted to a position of internal sales representative. The responsibilities were different and the salary considerably lower (15 000 to 25 000 dollars less annually). When she inquired about the reasons for the selection of those who were retained in their current positions, CBC responded that it intended to favour the “next generation”.

A few months later, a better position in the Major Accounts section became available and Ms. Lebrun, possessing all the required qualifications, applied. She was denied the position and when she complained CBC responded: "you have indicated your interest; we have decided to focus on the next generation."

Ms. Lebrun filed a complaint with her Union and, while on sick leave due to the circumstances surrounding her demotion, an internal investigation took place. The parties agreed with the essential facts found by the investigator but not with his findings concerning the real motivation behind the demotion.

The Collective Agreement contained clear provisions dealing with harassment at work, provisions that are similar to those contained in the Canadian Human Rights Act.

The arbitrator found that Ms. Lebrun was a victim of discrimination based on her age when CBC allocated the new positions resulting from reorganization. Not only was the change of position akin to a disguised dismissal, but the prima facie evidence led to a conclusion that her dismissal was based on discrimination against Ms. Lebrun because of her age. Radio-Canada was unable to prove that the demotion was justified because of Ms. Lebrun's lack of required skills, especially as it had stated twice that the decision was motivated by "the need to make room for the next generation." In these circumstances, it was clear that the Employer engaged in discrimination based on age that resulted in Ms. Lebrun no longer being able to occupy her position. This greatly affected her self-esteem and dignity and that, over time, evolved into a situation of psychological harassment.

The reasons given by an employer to "justify" what is otherwise discrimination based on age may sometimes appear to be based on a neutral criteria, but the end result is nevertheless discrimination based on age. With Canada being faced with an aging workforce, we can expect an increase in claims based on age discrimination.