Legal Words

Best practices for avoiding age discrimination throughout the employment cycle

By Adrian Ishak

With the inevitable aging of Canada’s Baby Boomers, a large segment of our population hovers around the cusp of retirement. As a result, there are a number of pertinent factors that HR professionals and employers ought to be aware of, including age-related discrimination concerns; employees’ rights; employer obligations; and how to respond to the greying workforce in a way that limits exposure to potential claims of discrimination.

With this in mind, how might age discrimination creep up throughout the employment life cycle? What should employers know? And, what are the best practices an employer should adopt?

Recruitment

During the recruitment process, ensuring that stereotypes and biases relating to age do not play a role in the candidate’s chances of success is vital. Recruiters should avoid asking questions about age, and avoid requesting dates of completion of education and other credentials – from which age may be inferred. However, there are certain circumstances where questions about age may be asked; these include 1) where a special program is in place; 2) employment is aimed at individuals 65 and older; 3) the employer is a special interest organization servicing a particular age group; or 4) age is a bona fide occupational requirement (BFOR).

Developing objective screening criteria may lessen the chances of biased recruitment and potential complaints of age discrimination. To protect against such complaints, employers should keep records related to job competition for at least one year.

Performance management and training

If concerns regarding an employee’s declining performance exist, a universal and objective performance review ought to be undertaken. To ensure transparency of decision-making, constructive criticism and warnings should be given when necessary, and performance issues should be clearly documented.

Employers should also assess whether declining performance is linked to disability – if this link exists, termination is not the immediate answer. Employers must remember that under human rights legislation, they have a duty to accommodate to the point of undue hardship. Accommodation strategies may include flexible hours and/or schedules, job sharing, short- or fixed-term contracts, phased retirement, a lateral move to a better fitted position or training and retraining.

Regarding training, standard and universal training programs may not satisfy the needs of all workers. Consideration should be given to developing learning plans with employees, and in some cases, it may be appropriate to assist older workers to acquire the skills they need to adapt to new workplace practices and changing technologies.

Retirement

Mandatory retirement

In 2006, Ontario eliminated mandatory retirement, and in 2012 it was eliminated for federal employees. This means that an employee may continue to work regardless of their age, and their retirement must be voluntary.

There are few instances, however, where mandatory retirement may be permissible – that being, where age is considered a bona fide occupational qualification (BFOQ) due to the nature of the position. An example is mandatory retirement imposed on firefighters – which is justified by concerns regarding cardiac health. For such to be permitted, the employer must show 1) that mandatory retirement was adopted in good faith; 2) mandatory retirement is rationally connected to the nature of the work; and 3) the employee cannot be accommodated without undue hardship. Using age as a BFOQ is an onerous standard and requires evidence of undue hardship as it relates to health and safety or operational requirements. Employers should be cautious if intending to impose such restrictions.

Retirement incentives

Employers who wish to encourage employees to retire are not barred from doing so, as long as what is being offered is a voluntary incentive, and it is done in the absence of direct or implicit coercion or pressure. An employee cannot be made to feel as though they are being forced out, or are being unfairly targeted. Consequently, employers should be careful about singling out employees to discuss retirement based on age; make conversations surrounding retirement and future goals and plans a consistent practice; and think about offering referrals to financial planners for those interested.

Termination

When terminating an older employee, employers must be weary of intersections of the two protected human rights grounds of “age” and “disability.” Despite possible legitimate concerns underscoring the decision to terminate (such as performance issues), an employer must be sensitive to the possibility that disability might be a factor. If so, would terminating the employee demonstrate the employer’s failure to accommodate? In cases such as this, employers should consider whether accommodation options might be suitable, or they might want to offer early retirement packages as incentives (as mentioned above). Although singling out an employee and offering an early retirement incentive is normally unacceptable, in the case of termination, retirement incentives can be offered in lieu of a non-discriminatory reason for termination (i.e., performance issues).

If an employer remains steadfast in their decision to terminate (assuming it is without cause), attention must be paid to the employee’s termination entitlements for which they may be liable – one being notice period. The purpose of the notice period is to give the employee sufficient time to find comparable employment. Age is one of the factors used to determine an employee’s reasonable notice period, and the older a worker, the greater a notice period may be. As one might imagine, finding employment at an older age can be challenging, and notice periods generally reflect this (especially where the employee has longstanding tenure).

Family status

Finally, but no less important, is the consideration of an employee’s family status. When we hear “the greying workforce,” we tend to fixate on individuals nearing the age of retirement; however, employers also ought to be aware of their younger employees’ obligations as they relate to eldercare.

“Family status” is a protected ground under the Human Rights Code, and case law has affirmed that providing eldercare for ailing parents falls under this protected ground. As employees begin to work double time, fulfilling their duties at work and caring for parents at home, there will inevitably be an increase in family status claims. To avoid a potential claim under this ground, employers should try to accommodate and be flexible with their caregiving employees. Strategies may include offering flexibility in the workweek and hours, and the possibility of working remotely.

Final thoughts

Employees who choose to work up to and past the average retirement age can pose a certain set of challenges for themselves and their employers – these challenges, however, are not insurmountable. Employers who equip themselves with the appropriate knowledge and strategies, and collaborate with employees to establish feasible options, can avoid unhappy workers and associated legal claims. 


Adrian Ishak is a partner at Rubin Thomlinson LLP.