There are several fallacies about age that are unique to the employment context. There is a widespread view, which has been described as a ‘lump-of-labour fallacy’, that assumes that every job held by an older worker is one less job available for a younger worker[44]. There is, therefore, a perception that older persons are depriving younger ones of opportunities and that some types of age discrimination are necessary to facilitate job and promotion opportunities for younger workers. Some argue that this approach fails to consider the value of older workers who have experience as well as organizational-specific knowledge and networks[45]. This type of rationale for discrimination against older workers is not unlike the old claim that any job occupied by a woman is one less job for a man[46]. This latter example is clearly offensive to notions of equality and yet where similar reasoning is used to justify discrimination on the basis of age it does not attract the same level of scrutiny or concern.
Other stereotypes about older workers include assumptions that they are less ambitious, hardworking and dynamic and that they are more resistant to, or are unable to cope with, technological change[47]. These attitudes and assumptions place older workers at an increased risk for discriminatory treatment when employers undergo reorganization and introduce new technology or methodology[48].
Downsizing, a significant workplace trend in recent years, has been associated with early retirement as an adjustment mechanism[49]. In other words, employers often seek to achieve downsizing objectives by encouraging older workers to leave their jobs through financial incentives, such as early pension benefits and “golden handshakes”. However, many other older workers are being pushed out of the labour force by layoffs and unemployment[50]. Despite the fact that generous early retirement packages can be beneficial to older workers, the use of older workers to achieve downsizing objectives is still a phenomenon that needs to be scrutinized. It should be noted that downsizing, while not inherently discriminatory, may encompass questionable practices.
Firstly, there is a concern about whether an offer of early retirement in the face of downsizing represents a truly voluntary option or whether there may be a coercive element to it. Faced with the possibility of losing their job altogether, many workers may feel compelled to accept retirement. As well, the fact that older workers are sometimes approached in a manner that may be seen as imposing a subtle pressure to leave the company through early retirement may lead to a feeling that older workers are being targeted. If they refuse retirement, their job will be selected for downsizing. Combined with the fact that some older workers may be faced with the negative attitudes already discussed may mean that, for some, accepting early retirement is not a truly voluntary option.
Secondly, as the statistics on seniors’ incomes show, there is a potential for income inequality among tomorrow’s seniors. Involuntary retirees are twice as likely as voluntary retirees to indicate that their household income is less than adequate to satisfy their needs[51]. Those who accept early retirement in the hopes they will be able to supplement their income with a new job may find it very difficult to find a new job because of their age[52].
It is important to be able to distinguish between offers of early retirement that are truly voluntary and without penalty if not accepted, versus those that are coercive in nature. The former are advantageous to older workers and should not be discouraged while the latter may give rise to human rights concerns. Policy work in relation to age may be able to identify some analytical tools to distinguish between the two.
Housing is a critical issue related to quality of life for seniors. In order to maintain their independence and well-being, seniors need housing that is safe, affordable, accessible and adaptable, allowing maximum freedom and continuation of a person’s lifestyle. The normal physical changes that occur as people age and the diseases or disabilities that affect some seniors have implications for housing. In designing and building housing for seniors, the aim should be a barrier-free environment, with recognition that barriers are both physical and psychological. This would enable those who may suffer from some degree of impairment to continue to perform the activities of life.
The National Advisory Council on Aging and other organizations have developed concrete recommendations for barrier-free design.
Health care is an important issue for everyone in society and particularly for seniors. There are two aspects of this issue that affects seniors. Firstly, the perception that older persons are frail and dependent leads to assumptions that seniors are a strain on the health care system. One author has even suggested that the elderly be required to pay user fees for health care and has concluded that because of the cost of free medical care for the aged,
it is clear that it would not be impossible for a government to adduce the evidence required to uphold a discriminatory user fee law under section 1 of the Charter. As McKinney demonstrates, legislation which has been shown to discriminate on the basis of age has been upheld by the Supreme Court in the past. This result suggests that discriminatory user fee legislation could be similarly upheld in the future. [54]
The author goes on to suggest that the overburdened base of taxpayers will have to look to those using the system disproportionately, i.e. the elderly, for some help in funding this use.
These types of negative attitudes in the health care context are more than academic. They result in barriers for elderly persons trying to access the health care system. A survey of 115 Ontario physicians found a failure by many family doctors to treat elderly patients for depression, anxiety disorders and dementia[55]. The survey revealed that younger patients are much more likely to be treated or referred to a psychiatrist or psychologist than older patients. This can be explained, in part, by negative attitudes:
The lack of treatment for the elderly for depression, anxiety disorders and dementia has a lot to do with doctors’ negative attitudes toward older patients, said Dr. Nathan Herrmann, a geriatric psychiatrist at Sunnybrook and Women’s College Health Sciences Centre.
Many physicians don’t like having older patients in their practice because they take longer to assess and they have more complaints, Herrmann said. As a result, doctors tend to normalize mental disorders for those late in life, expecting them to be depressed as a result of pain and suffering from other ailments[56].
A province-wide analysis of OHIP billings confirms that despite an increase in spending on mental health care, seniors continue to be underserved, only receiving 15% of the province’s mental health care, compared to more than 80% for people between the ages of 20 and 64[57]. A tendency to treat mental illness in older persons as less worthy of intervention is simply a direct form of systemic discrimination.
The reluctance of doctors to include seniors in their practice is reported in the media as well.[58]
At the same time as being faced with negative attitudes that may result in difficulty accessing the medical services they need, many seniors do have significant needs with respect to health care. The elderly are more prone to suffer health problems and disabilities than persons in younger age groups[59] and the health problems suffered by older persons also tend to be more chronic than those of younger people and to increase in severity[60]. As noted earlier, seniors are hospitalized more often and tend to stay in hospital longer than others. For all of these reasons, there is a need for medical services and facilities that, rather than being more difficult to access, are designed to meet the needs of older persons.
Areas in which seniors’ health needs may be inadequately addressed include:
To the extent that some of these issues relate to government policy choices, they are not matters for human rights commissions. However, if the needs of growing numbers of elderly persons are being chronically underestimated or simply not addressed, there is a genuine concern that the quality of life for this group of citizens will deteriorate sharply as the baby boomer generation starts to enter this age group.
The development of an adequate system of publicly insured, community-centred nursing home care is also vital. Despite an increase in the use of community-based health care, the need for nursing homes is predicted to increase as the proportion of older persons in the population increases and, particularly, as the proportion of the very oldest persons rises[62]. Improving the system of residential institutions would especially benefit elderly women, as they are far more likely to live in institutions than their male counterparts[63].
Another important issue is the need for facilities that address the needs of particular seniors. Gay and lesbian seniors have trouble finding safe and comfortable institutions where they do not fear being isolated and excluded unless they hide their sexual orientation[64]. Certain religious and cultural communities find that there are no facilities to address the religious, cultural or linguistic needs of their seniors[65].
[44] Flexible Retirement, supra, note 11 at 3.
[45] Ibid. at 5.
[46] Ibid. at 13.
[47] For example, one author has criticized the use of seniority in part on the basis that it results in a workforce which is “older, less dynamic and more resistant to technological change”; L. Dulude, Seniority Systems and Employment Equity for Women (Kingston: Industrial Relations Centre Press, 1995) at 22 as cited in M.K. Joachim, “Seniority Rights and the Duty to Accommodate” (1998) 24 Queen’s L.J. 131 at footnote 23, online: QL (JOUR).
[48] In a recent case that came before the Commission, an employer alleged that after restructuring its operation, it required employees to be more “generalist” rather than “specialist”. The complainant was an older worker and was seen as a “specialist” and implicitly unable to adapt.
[49] Flexible Retirement, supra, note 11 at 5. Many unionized environments protect employees with seniority from the effects of downsizing. However, as one author notes: “The correlation between seniority and age is so inexact that seniority is an ineffective means of protecting older workers.” (M.K. Joachim, supra, note 47 at para. 32).
[50] G. Schellenberg, “The Road to Retirement: Demographic and Economic Changes in the 1990’s” (The Canadian Council on Social Development, 1994) From the Selected Highlights, online: The Canadian Council on Social Development <http://www.ccsd.ca/factret.html>.
[51] Ibid.
[52] Among workers over age 55, those who are laid off are twice as likely as younger workers to still be looking for work a year later. Unemployed older workers typically collect employment insurance for 33 weeks, twice as long as younger workers; from “Give older workers a break, employers urged” The Toronto Star (17 July 1999) citing Statistics Canada.
[53] This discussion with respect to housing is from “A Choice of Housing Lifestyle” Expression: Newsletter of the National Advisory Council on Aging, vol. 10 no. 4, supra note 25.
[54] B. Curtis, “User Fees for the Elderly: Medicare Solution or Dissolution?” (1996) 2 Appeal: Review of Current Law and Law Reform 18 at para. 14, online: QL (JOUR).
[55] “Mentally ill seniors not treated: Survey” The Toronto Star (10 May 1999).
[56] Ibid.
[57] As reported in “Teens, elderly lag behind in mental health services” The Toronto Star (26 April 2000).
[58] See for example, letter to editor “Seniors Turned Away: Doctor won’t accept new patients over 65” Hamilton Spectator (29 November 1999).
[59] From M. A. Shone, “Health, Poverty and the Elderly: Can the Courts Make a Difference?” (1991) 29 Alta. L. Rev. (No. 4) 839, online: QL (JOUR). The article cites a statistic that about 80% of those over age 65 report at least one health problem, compared to 54% of the Canadian population as a whole; from Health and Welfare Canada, The Active Health Report on Seniors – What We Think, What We Know, What We Do (Ottawa: Minister of National Health and Welfare, 1989) at 5 [hereinafter “Active Health Report”].
[60] Active Health Report, ibid. at 3.
[61] From Shone article, supra note 59.
[62] Ibid.
[63] Ibid. See also demographics in section on Seniors and Institutions.
[64] “Gay, lesbian seniors face discrimination” Peterborough Examiner (4 April 2000).
[65] “South Asian community wrestles with aging issue” The Toronto Star (29 April 2000).