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Facing up to age discrimination

The end of mandatory retirement has resulted in both problems and opportunities
By Stuart Rudner and Richa Sandill
March 04 2016 issue

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Whether individuals continue to work past age 65 because they want to, or because they have to, mandatory retirement was widely eliminated because it was recognized they should not be prevented from doing so. However, this legal change has inadvertently created some challenges for employers that may have increased discrimination against older workers.

Employers used to be able to allow older workers to retire at a set time with dignity. Slowing work performance with age could be overlooked because retirement was on the horizon. Employers no longer have this certainty. Furthermore, performance management of such an employee may appear condescending and could even spawn allegations of discrimination based upon age.

As a result, some employers avoid the issue entirely by not hiring traditionally “retirement-age” employees, or making older workers the first to be packaged out when restructuring or downsizing. This is, of course, unfair and at odds with the intent of the elimination of mandatory retirement and with human rights legislation. However, in many cases, it is also virtually impossible to prove.

Both case law and anecdotal evidence reveal that this problem is more widespread than meets the eye.

The Ontario Human Rights Commission’s Policy on discrimination against older people because of age provides several initial grounds for concern. Anecdotes suggest older workers are being turned away for reasons including: perceived unwillingness to grow, being too specialized, too expensive (especially considering salary expectations and benefit premiums) and, in one example, not fitting the youthful character and image that an employer wished to portray.

As employment counsel, we often hear stories of workers who are encouraged or explicitly told that they should retire, or are routinely asked about their retirement plans. Media anecdotes reveal similar patterns. A National Post article from 2012 cited mass layoffs of retiring age employees in the lead-up to mandatory retirement bans coming into effect. A 2013 study, Second Wind: The Evolving Nature of Retirement, found significant gaps between the large number of mature workers that wish to stay in the workforce and the employer-led retention strategies available for them. Other anecdotes include “strongly encouraging” older employees to take early retirement packages.

Proving age discrimination on a balance of probabilities can be difficult. In a paper for the 2015 Employment Law Conference, the Continuing Legal Education Society of British Columbia explored a number of cases from the last 10 years where workers alleged age discrimination on the basis of health conditions, (Mahoney obo Holowaychuk v. The Owners, Strata Plan #NW332 [2008] BCHRT 274); heavy scrutiny in performance reviews (Riddell v. IBM Canada [2009] HRTO 1454 (CanLII); and policies requiring extra training for retiring teachers wishing to return to work (Law v. Thames Valley District School Board [2011] HRTO 953). Each of these applications was dismissed. Similarly, in Zholudev v. EMC Corporation of Canada [2012] HRTO 626, the Tribunal dismissed six challenges against an employer’s decision not to promote the complainant, scrutinizing each allegation for its lack of relevance to the protected ground.

This does not mean damages are impossible. In Clennon v. Toronto East General Hospital [2010] HRTO 506, the claimant was awarded $21,392.48 for loss of severance payouts and $20,000 in damages for injury to dignity, feelings and self-respect. The complainant in this case was dismissed after the employer decided, partly based on the complainant’s older age, it was not worth discussing performance issues with her.

Damages on a much lesser scale have been awarded for discrimination in the hiring process. In Reiss v. CCH Canadian Limited, a 60-year-old lawyer received $5,000 for injury to dignity, feelings and self-respect after he was deemed “overqualified” for a position. In Deane v. Ontario (Community Safety and Correctional Services), the Tribunal awarded the fourth runner-up for an internal job opportunity $7,000 in damages under the same criterion as Reiss. In this instance, after she was unsuccessful, the complainant’s supervisors “encouraged” her to retire early.

For existing employees, communication is critical. Employers should not pressure older employees to reveal retirement plans or allude to age as a problem. However, they can discuss mutually beneficial options. Some aging workers may want a change; they might desire a mentoring role; or they may want a reduced workload. There are agencies that can work with individuals and help them define how they want to end their career. In many cases, frank and respectful discussions can result in “win-win” solutions that allow the employer to benefit from a senior employee’s wealth of knowledge and experience while allowing the employee to remain engaged.

While the end of mandatory retirement indirectly created some challenges, employers should recognize that creative solutions are achievable through communication and planning and without discriminating against older workers or applicants.

Stuart Rudner is a founding partner and Richa Sandill is an articling student at Rudner MacDonald LLP.

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