Ageism is a live issue employers should not ignore.

Age Discrimination

A recent Globe and Mail article, “The rise of the older worker – age – discrimination lawsuits”, (May 11, 2018), reports that with mandatory retirement gone and with low income returns on fixed income investments, workers are staying in the workforce longer than ever. And as baby boomers turn 60 and beyond, we have an unprecedented number of older workers who are active and who have no plans for retirement. What is the effect?

Expect to see a surge of cases dealing with age discrimination.

Consider the recent case where a finding of age discrimination was made against CIBC. Shortly, after firing one of its executives, CIBC ran an ad which said it was looking for a “young and entrepreneurial candidate”. As it turns out, the executive was only 42 years old. While these facts were straightforward, there are many subtle and not so subtle actions an employer can take which can have an impact on their workforce and which can trigger either human rights liability as well as a potential wrongful dismissal action based on age discrimination.

Effect on Reasonable Notice

An older workforce creates a series of novel issues for many employers. These include insurability issues, accommodation, as well as the cost of terminating employees who are in their late 50 and early 60’s.

The current legal framework may not be equipped to deal with age issues which are on the horizon. While the human rights framework is relatively straightforward in that where an employee can show that there is a link between his or her age and a treatment (i.e. a demotion, a change in compensation or reporting structure) then a finding of age discrimination will be found, the law of reasonable notice still requires some fine tuning. The usual factors which are considered in determining notice may have to be re-evaluated to reflect an aging population. Age usually plays an important part in determining reasonable notice, but when an employer is dealing with many older workers, paying them out can get very expensive.

Many employers are finding themselves with a full head count and wanting to hire younger graduates but are not able to. This is starting to become a real problem.

Practical Tips for Employers

As an employer there are several steps you can take to minimize your liability. Here is a list of practical tips that employers might wish to consider which are borne out of human rights cases and my experience in dealing with this topic:

  • Ensure that employee policies and handbooks contain language which addresses age discrimination and not just sexual harassment and gender discrimination.
  • During the on-boarding process, do not ask questions which may lead to candidates inadvertently sharing a date. This often comes up when candidates are invited to share their interests, hobbies or important professional milestones. As an employer you need to ensure that the person doing the interviewing isn’t trying to find an indirect way to gauge the candidate’s age.
  • Make sure your social media appeals to multiple generations in the workplace.
  • When turning down a candidate, employers should refrain from advising the individual that he or she was unsuccessful because he or she was overqualified or had too much experience.
  • Create team activities suitable for all ages.

Even though age will become a growing issue for employers to deal with, it is Important to remember that older workers bring a wealth of experience and can be a source of stability. Be proactive and start to minimize your risks.