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Section 10 of the Code defines “age” as eighteen years or older, except in the case of employment where “age” means an age that is eighteen years or more and less than 65 years. This means that in the area of employment, persons who are 65 years or older cannot complain of discrimination because of age. That does not, of course, preclude complaints from persons who are over 65 years of age where the allegation is of discrimination on other grounds, for example race or disability.
Age discrimination includes not only direct discrimination, but also indirect and constructive discrimination. Constructive, or adverse effect discrimination, is set out at s. 11 of the Code:
11.--(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.(2) The Commission, the board of inquiry or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
There are important exceptions to the rule against age discrimination. These exceptions are discussed in detail later in this paper.