Guarding Against Age Bias

With some rare exceptions, actions in the workplace based solely on an employee’s age are discriminatory and violate portions of these human rights laws in Canada: the Charter of Rights and Freedoms, the Human Rights Act and provincial and territorial statutes.

The Supreme Court of Canada has defined discrimination as: “A distinction whether intentional or not but based

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Testing for Undue Hardship

   There is an exception that allows some discriminatory actions if the cost of accommodating an employee would present an undue hardship for the company.

When making a determination of undue hardship, businesses should consider three primary factors: health, safety and cost. A company has to provide hard evidence that accommodation would cost too much or impose health and safety concerns.

The Supreme Court of Canada has listed other factors that may be considered, including:

  • The type of work performed.
  • Size of the workforce.
  • Interchangeability of job duties.
  • A financial ability to accommodate.
  • The impact on a collective agreement.
  • The influence on employee morale.

These factors and their importance vary from case to case. For example, a large corporation or a federal agency would likely find it hard to prove undue hardship on the basis of cost alone. Such organizations usually have the budget, size and flexibility to accommodate special needs at a lower cost. Among the factors considered when determining financial costs are:

  • The employer’s size and financial situation.
  • An ability to amortize costs or mitigate the hardship in some other way.
  • The number of people the accommodation would benefit.
  • The possibility of phasing-in major accommodations.
  • The availability of special budgets, reserve funds or external sources of funding, such as government funding or tax incentives.

Factors Not to Consider Include:

  • Customer or public preference based on prejudice or stereotyping.
  • Discriminatory objections, such as other employees’ objections to accommodations based on prejudice or attitudes inconsistent with human rights values.
  • Threatened grievances by other employees.

on grounds relating to personal characteristics . . . which has the effect of imposing burdens, obligations or disadvantages on [an] individual or group not imposed upon others or which withholds or limits access to opportunities, benefits and advantages available to other members of society.” (Andrews v. Law Society of British Columbia)

To help avoid charges of age bias, a company must keep the workplace free from discrimination and support the needs of older employees. To help protect your business from potential legal liability, get professional legal help setting up a policy.

According to the Ontario Human Rights Commission, here are some of the actions that could generally be considered to involve age discrimination:

  • Limiting or withholding transfers, promotions and training based on an employee’s age.
  • Using subjective criteria that could indicate ageism in determining whether to retain or terminate an employee.
  • Refusing to assign an older employee to certain jobs or requiring an undesired transfer.
  • Linking performance evaluations to age by either subjecting older employees to more scrutiny or evaluating based on a perception that a person will soon retire.
  • Failing to recall someone from a layoff because of age.
  • Targeting older workers during a downsizing, reorganization or amalgamation.
  • Letting an employee go because the person is eligible for pensions.
  • Retaliating or threatening retaliation against any individual who is the alleged victim of age discrimination, files a complaint or testifies in a discrimination complaint.
  • Failing to accommodate older workers unless that would create undue hardship for your company. (See right-hand box for how to gauge undue hardship).

Age discrimination can also be found in the recruitment and hiring process, so it’s prudent to take the side of caution and avoid:

  • Direct or indirect statements relating to age in job advertisements.
  • Age-related questions in job applications other than to determine that a candidate is old enough to hold a full-time position.
  • Interview questions relating to age unless: the job is aimed specifically at persons 65 years of age or older; the hiring organization is a special interest group serving a particular age group; age is a bona fide occupational requirement of the job; or the question is necessary to determine eligibility for a special program to promote age equality.
  • Statements about your company’s need to “rejuvenate” its work force.
  • Comments while evaluating candidates that refer to the applicant’s appearance, adaptability, or ability to be trained based on age, or concerns that the applicant will be too costly to hire because of age.
  • Evidence that there is a pattern of preference for hiring younger workers. For example, if a significantly younger candidate is hired whose qualifications are no better than an older candidate for the same job, or a candidate is turned away due to a perceived “lack of career potential” or experience that was too “diversified” or “specialized.”

Certain types of differential acts are not generally considered discriminatory when based on age, such as:

  • Legal restrictions on child employment.
  • Affirmative action programs for older workers.
  • Retirement plans based on minimum age plus years of service.
  • Policies aimed at easing the transition into retirement.

(In a future article we will look at whether mandatory retirement is discriminatory.)

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