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Age discrimination policy issued in Ontario

Citing the persistence of "preconceived notions, myths and stereotypes about the aging process", the Ontario Human Rights Commission has issued its "Policy on Discrimination Against Older Persons because of Age". While such policies are non-binding, they are likely to be given considerable deference in any subsequent adjudication. As in the case of the federal guidelines on alcohol and drug testing (see "Federal human rights body issues alcohol and drug testing policy" on our What's New page), the policy stresses the need for individualized assessment and decisions rather than actions based on the presumed group characteristics of older workers.

It should be noted at the outset that mandatory retirement at age 65 is permitted under the Ontario Human Rights Code, due to the Code's definition of "age". Consequently, the Commission does not receive complaints of age-based discrimination in employment from persons forced to retire at age 65.

The following are among the issues dealt with in the policy:

Hiring

Based on provisions of the Code, the policy provides the following guidance with respect to various phases of the hiring process:

• Avoid statements directly or indirectly relating to age in job advertisements.
• Aside from ascertaining that a candidate is 18 years old or older or less than 65 years old, no questions relating to the candidate's age or year of birth should appear in job applications.
• During a job interview, questions relating to age may asked only when a defence provided under the Code applies. These include
  • when a special program to promote equality with respect to age is in place (s. 14);
  • when the job is aimed specifically at persons 65 years of or older (s. 15);
  • when the employer is a special interest organization serving a particular age group (s. 18); or
  • when age is a bona fide occupational requirement of the job.

While it is difficult for complainants to prove that they were not offered a job due to their age, the policy notes a number of factors that may reveal the existence of age-based discrimination behind a hiring decision, such as:

• statements about the employer's need to 'rejuvenate' its work force;
• comments about the applicant's appearance, adaptability, or ability to be trained;
• concerns that the applicant will be too costly to hire because his or her age;
• evidence of a pattern of preference for hiring younger workers;
• evidence that a significantly younger candidate was hired despite having qualifications no better than those of the older candidate;
• evidence that a candidate has been turned away due to perceived lack of 'career potential', or because he or she is 'overqualified' or his or her experience is too 'diversified' or too 'specialized'.

The policy indicates that, in order to establish that a hiring decision was not discriminatory, employers should develop "up-front, objective and job-related screening criteria for job competitions, … score candidates relative to these criteria and … retain all records related to job competitions for at least six months after the competition has been completed".

While it is possible to justify a discriminatory hiring decision, having regard to the three factors set out in the B.C. Firefighters case (see ""Not reasonably necessary": aerobic fitness test held discriminatory in B.C. woman firefighter victory"), the policy cautions that recent human rights cases show that this is difficult to do, particularly if cost is given as the reason.

Age-based discrimination in the workplace

Noting the disproportionate impact of reorganization and downsizing on older workers, the policy points to a number of factors that should be considered in determining whether age discrimination has occurred during a restructuring:

• comparison of the performance of those terminated with those who remain employed;
• analysis of the age of those adversely affected by reorganization with those not affected;
• use of subjective criteria in the reorganization, such as flexibility or the ability to be trained, that could reflect stereotyping;
• indications that workers are being terminated because they are pension-eligible.

Ideally, the policy states, positions rather than people should be designated for elimination, and those positions should not be subsequently re-filled.

Retirement

While early retirement programs often benefit both the retirees (by offering lucrative incentives) and those whose jobs are spared from elimination, they must be designed carefully in order to avoid the inference that they are discriminatory. To this end, there must be no pressure exerted on employees to accept early retirement. In this connection, it has been held that a generous retirement package will not defeat a claim of age discrimination if the employee's acceptance of the package was not truly voluntary.

In some types of employment, most notably police and firefighting services, the employer may wish to establish mandatory retirement at age 60, on the basis that age is a bona fide occupational requirement. Previously, it was held that such policies were justifiable based on general evidence of the link between aging and cardiovascular disease and declining aerobic capacity, combined with evidence that it was "impractical" to conduct individualized testing. However, following the B.C. Firefighters case, it will likely be necessary to show that individualized testing would amount to undue hardship.

Pensions, benefits and seniority

Noting that pensions and benefits schemes are governed by a complex statutory regime as well as actuarial factors, the policy provides examples of plans that have been found not to be discriminatory. These include:

• plans providing reduced pension benefits for early retirees when it is shown that the actuarial value of the reduced pensions is at least equal to the present value of the deferred pensions for those electing to stay until they are eligible for full pensions;
• plans basing eligibility for pension benefits on reaching a certain age.

By contrast, sick leave plans that make benefits available based on age have been found to be discriminatory.

Accommodating older workers

Due to the relationship between age and disability, the duty to accommodate a disabled worker is particularly relevant to older employees. However, even if disability is not at issue, special consideration should be given to various schemes that ease the transition to retirement, such as:

• flexible hours and working conditions, (e.g., flex-time, working from home);
• part-time and job sharing arrangements; and
• hiring retired workers for contracts and consultant positions.

In Our View

The fact that the work force is aging, along with the continued reality of workplace restructuring means that employers must be vigilant to avoid lapsing into practices that can be challenged as discriminatory. Particular care should be taken in the formulation and administration of early retirement schemes, as these will by their very nature be directed at older workers.

For further information, please contact Andrew Tremayne at (613) 563-7660, Extension 236.