Age Discrimination in the Workplace

Presented by: Rajeev Burman, Legal Counsel

Jane Zhang, Legal Counsel

April 23, 2019

Agenda

1. Introduction

2. Age Discrimination v Ageism

3. Ontario Human Rights Code

4. Proving Age Discrimination

5. Age Discrimination in the Workplace

2

Agenda(con’t)

6. Ageism in the Workplace

7. Assumptions / Stereotypes

8. What to do when conflicts arise?

9. Ageism in the workplace – let’s talk

10. Q&A

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Introduction

• Demographics

• Millennials vs. Boomers

• End of Mandatory Retirement in 2006 & Delayed Retirement

• Nearly 20% of all workplace human-rights claims filed in Ontarioallege age discrimination

• Average Retirement Age is 63; Canadians aged 55 plus account for 38%of working population

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Age Discrimination And Ageism

5

Age discrimination Ageism

Treating persons in an unequal fashion due to

age in a way that is contrary to human rights

law

A socially constructed way of thinking about

older/younger persons based on negative attitudes

and stereotypes about an age group and therefore

failing to respond to the real needs of the particular

age group

Acting upon ageism to cause adverse effect Cause for individual acts of age discrimination

Can be subtle, nuanced, unintentional and difficult to prove

One of the mostly socially condoned/tolerated forms of prejudice/discrimination

Ontario Human Rights Code

Section 5(1) of the Code prohibits discrimination in employment:

Every person has a right to equal treatment with respect to employment

without discrimination because of race, ancestry, place of origin, colour,

ethnic origin, citizenship, creed, sex, sexual orientation, gender identity,

gender expression, age, record of offences, marital status, family status

or disability (emphasis added).

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Proving Age Discrimination

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Establish the elements of age discrimination:

• Age

• Adverse effect (example, benefits)

• Nexus

Employer Defence:

• BFOR (adverse effect)

Age Discrimination and Work

Situations

The Human Rights Code forbids discrimination when it comes to any aspect of

employment, including, but not limited to:

• Hiring/Interviews

• Job assignments

• Promotions

• Layoff/Termination

• Training

• Benefits 8

Hiring/Interviews

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Senior Nurses Junior Nurses

“career potential”

“more mature, professional”“overly qualified”

“high energy and

enthusiasm”

Reiss v CCH Canadian Limited, 2013 HRTO 764, 76

C.H.R.R. D/391 (OHRT) : employer’s agent told applicant

that employer was looking for someone “more junior in their

experiences”

Training /Seniority

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• What benefit would this training program be at your age?

• Dalton v Canadian Human Rights Commission (1985) : assigning

seniority based on birth date when more than 1 employee is hired on

same day

Termination/Layoff

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• Kearns v Dickson Trucking LTD : terminated on the basis of “

lack of potential” and replaced by younger person

• McKee v Hayes-Dana Inc. : Employer underwent downsizing.

Layoffs were not conducted on the basis of seniority. Rather,

VP stated that company “hoped to keep people with career

potential”

Examples of Ageism in the

Workplace

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• Performance Management

• Termination/Restructuring/Layoffs w/ replacement by younger employee

• Hiring & Promotions & Opportunities

• Creating Conditions that Force Retirement

• Promoting a "Youthful Culture" - e.g. Tech sector

Assumptions/Stereotypes about

Younger/Older Workers

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• Older - lower productivity, resistance to new technology, costly in terms of

wages/benefits/vacation, safety risks, difficult to teach/train, more likely to

be sick/absent/health issues, less invested in workplace

• Younger - lack of strong work ethic, entitled, too engrossed in technology,

want to have more flexible schedules & work-life balance, unwilling to pay

"dues", lack professionalism, lack experience

Assumptions/Stereotypes about

Younger/Older Workers

(con’t)

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• Unfair perceptions can influence decisions about hiring, promotion,

training, retention.

• Generational Irony is that many of the negatively held assumptions about

millennials were also said about previous generations when they were

young workers (Gen X, Boomers)

What to do when Conflict Arises?

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• Discussion

• Other "In-House" Options

• Ageism amongst colleagues - younger & older nurses

• Example - How to deal with Patient/Family when clear they would prefer a

younger/older nurse to be assigned

• Filing a Grievance

Ageism in the Workplace - Let’s

Talk

16

A discussion with Pam Mancuso, Board of Directors and Celine Messier,

member of ONA’s Human Rights Committee:

• Value of Mentorship vs. Workload Dilemma

• Advice to Junior/Senior Nurses in the Workplace

Resources

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• Human Rights and Equity: A Guide for ONA Members

http://www.ona.org/human rights equity/resources.html

• Human Rights Commission

http://www.ohrc.on.ca/en/search/site/age%20discrimination

Questions?

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Thank you!

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