By Jim Anstey, B.A., LL.B.
Know your rights
Older workers bring considerable value to businesses. They typically have lots of relevant experience, allowing them to provide meaningful feedback on proposed business initiatives. Having
been through many economic cycles, they also have insight from working through the tough times. Older workers also tend to have extensive corporate knowledge that newer employees cannot. Having no childcare responsibilities allows them to be more responsive and flexible.
It is surprising, then, that with all of the benefits older workers bring to the workplace, they face considerable discrimination because of their age. In particular, older workers report unfair treatment in hiring decisions, in career advancement, in their workplace relationships, and concerning forced retirements.
Older workers often complain about being passed up for new jobs despite their superior training and experience compared to younger candidates. Our legal system has recognized that older workers experience such discrimination since time immemorial. It is why older workers are typically entitled to bigger severance packages when dismissed, age being one of the primary considerations.
It is illegal for employers to consider age as a factor in their hiring decisions. Doing so constitutes a breach of their human rights, which are protected in every Canadian jurisdiction by legislation. Older workers who believe they were denied a new opportunity because of their age can launch a human rights complaint or sue on that basis. If an older worker meets all of the job requirements as posted (or as many as the other candidates), an employer that fails to offer an interview to the older worker would be strongly suspected of discrimination. Furthermore, simply indicating that an older employee was not the right “fit” after an interview will not suffice to defend a claim of age discrimination; the employer would have to show objective evidence that the preferred
candidate was superior.
Throughout our careers, we undergo training to keep our skills current. Older workers often complain that they have been left out of critical training, especially with respect to technological and legal advancement. This results in older workers being unable to take on new projects because younger workers have more recent education and training. The older workers are simply not chosen for certain projects or not considered to take leadership roles on them.
Older workers who experience a lack of training opportunities compared to their younger colleagues should address this issue with their manager and/or HR department. Speaking candidly about the reality of industry changes and the desire to maintain your skills can go a long way in ensuring you are not left out. In addition, it provides some protection against becoming obsolete and would assist in any resulting legal action.
Older workers find that they are sometimes left out of workplace discussions on substantive work issues. They also report that their younger colleagues exclude them from social events. When this happens, older workers rightfully feel that they are not valued or respected.
Handling such situations with your peers is typically a delicate operation. With respect to substantive work, you can advise your colleagues that you cannot do your job if they keep leaving you out
of critical meetings. For social events, you may want to express an interest in attending the next event and see what happens. In both cases, your colleagues’ actions may constitute discrimination and possibly harassment if there was no legitimate reason to exclude you.
Long gone are the days when employers could mandate a retirement date for employees. The protection against age discrimination in human rights legislation used to end at age 65, allowing employers to fire those age 65 and older simply because of their age. Though some exceptions still exist, employers cannot terminate employment simply because an employee has reached a certain age, whether 65, 60 or 58.
“Succession planning” can be particularly problematic for older workers. Businesses need to plan for the future, and part of that is avoiding being unprepared when a senior, long-service employee in a critical role retires. To ensure a smoother transition, businesses often train subordinates or peers in preparation. The problem arises when the older employee stays longer than the employer expects or longer than the “heir” is willing to wait. When this happens, employers may put undue pressure on the older worker to retire. The perennial problem employment lawyers hear about is employers pressuring older workers to commit to an end date, failing which they make things difficult and uncomfortable until the older worker relents and resigns.
In other situations, employers carry out am “restructuring” to eliminate an older employee’s position, move their functions to other employees or reclassify the job such that the older worker’s skills are no longer a match. A restructuring that is carried out for the purpose of getting rid of an older worker is not just a human rights breach, it is also a classic example of bad faith conduct.
We also hear some employers complain that older workers are less productive. It is unfair whether this is due to a failure to provide clear expectations, training, or opportunities younger employees have. It is also illegal to discipline or dismiss an older worker on that basis.
If you think you are the victim of age discrimination because you are an older worker, discuss your situation with an employment lawyer. In addition, the human rights commissions in each of
Canada’s jurisdictions often publish helpful literature on this subject and may provide assistance with your case. Knowing your rights is the first step.
Jim Anstey is an associate lawyer in the Employment Law group at Nelligan Law. His practice involves providing advice on every aspect of the employment relationship, including hiring,
terminations, human rights, and occupational health and safety
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