Other age cases in the employment context

Recruitment

Age is a barrier for individuals when trying to get a job.  This problem is so prevalent that the Supreme Court of Canada has taken judicial notice of it:

It seems to me that the increasing difficulty with which one can find and maintain employment as one grows older is a matter of which a court may appropriately take judicial notice.  Indeed, this Court has often recognized age as a factor in the context of labour force attachment and detachment.^[93]

In Ontario, and the other Canadian jurisdictions, legislation prohibits discrimination based on age in advertising job vacancies and recruiting new employees.  Moreover, every jurisdiction protects candidates for employment from having to disclose their age on any application form or during an interview.^[94] Where such questions are relevant to company pension or benefit plans, the employer can only ask for the information after making an offer of employment. 

In Saskatchewan, the police force sought an exemption from this rule so it could ask for the date of birth of applicants for the purposes of a criminal record check.  The Saskatchewan Human Rights Commission^[95] refused the exemption stating that applicants could be asked questions with respect to criminal records and offers of employment could be conditional upon satisfactory confirmation that the applicant has no record.  Thus, asking for age on the application form was not necessary.

It is also not permissible to ask the applicant’s age during an interview unless age is a reasonable and bona fide occupational requirement.

There are several cases which have considered whether age was a factor in the decision not to hire a complainant. The decision in Bradley v. Canada (AG)^[96] demonstrates that it is very difficult to prove age discrimination in hiring cases (employers rarely say that age is the reason for not giving the applicant the job).  In Bradley, the Canadian Armed Forces had hired a younger officer for the position and someone had noted the complainant’s age of 43 years in the margin of notes used for assessment.  The complaint was dismissed on the basis that there was insufficient evidence of discrimination.  Had the complaint been that of a racial minority, whose race had been noted in the margin of interview notes, one wonders if the result would have been the same.

In Winsor v. Provincial Demolition and Salvage Ltd.^[97], the 55 year old complainant applied for a construction job and was told that his age was a factor in not being hired.  The Board of Inquiry found discrimination and as the respondents were not present, a BFOR defence was inapplicable.

In O’Brien v. Ontario Hydro^[98], a 40 year old man was refused an apprenticeship.  The employer did hire a number of persons in the 40 to 65 age range but not in the apprenticeship program.  The employer considered that age had relevancy when determining whether a person might adapt to certain job conditions, for example, menial tasks, minimal responsibility, low pay and shift work.  The Board concluded that age stereotyping was the proximate cause for the refusal and found for the complainant.

Age as a BFOR

There are a few decisions dealing with age as a BFOR outside the context of mandatory retirement.  The cases appear to indicate that, outside the context of mandatory retirement, establishing that age is a BFOR is very difficult.  In Canada (Human Rights Commission) v. Greyhound Lines of Canada Ltd.,^[99] the employer was unable to establish that its policy of refusing to hire new bus drivers over the age of 34 was a BFOR.  The evidence of a relationship between age and an inability to cope with stress was rejected.  Similarly, Air Canada was unable to justify its requirement that all pilot applicants over the age of 27 have greater qualifications than younger applicants^[100]. Air Canada sought to justify its policy on the basis of public safety and economic factors.

In Cranston v. Canada^[101], the issue was whether a group of pilots and flight attendants had been discriminated against when they were not transferred from the Department of Transportation to the Department of National Defence (when the service they had provided was transferred).  Initially, the Tribunal had concluded that the fact that the group had an average age of 51 did not contribute to the decision.  However, on judicial review the Federal Court Trial Division (upheld by the Federal Court of Appeal) agreed that while the age of the complainants was not the proximate cause of the decision to transfer, the evidence did suggest that age was a factor in the implementation of the decision.  The matter was remitted back and the new Tribunal^[102] found that the complainants had been victims of direct and indirect discrimination.  The new Tribunal held that the age of the complainants was a factor considered by the Department of National Defence in determining how to integrate the civilian flight service into the military one. The Department had not demonstrated that age was a bona fide occupational requirement as the objective element of the Etobicoke test had not been established.

Workplace Benefits

A sick leave plan which denied benefits to those over the age of 55 was found to be discriminatory in Heidt v. Saskatoon (City)^[103]. The Saskatchewan Human Rights Code contained a provision that the prohibition on discrimination in employment because of age does not prevent the operation of any term of a bona fide group or employee insurance plan.  The Court of Appeal held that for the defence to succeed, the plan must meet the objective test of a bona fide requirement, as set out in Etobicoke, and that no evidence was led to establish that the discrimination was reasonably necessary to allow the respondents to put into place a viable and cost-effective sick plan.  This case represents a good example of intersectionality between disability and age. 

In a case where persons who accepted early retirement (at age 50 instead of 60) got reduced pension benefits, age discrimination was not established^[104]. The Alberta Human Rights Commission accepted the evidence of the Superintendent of Pensions that the actuarial present value of reduced pensions under the employer’s plan was at least equal to the present value of the deferred pensions at age 60.

In Gell v. Canadian Pacific Ltd.^[105], the Federal Court of Appeal affirmed a decision that an amendment to a pension plan permitting some members to buy back pension benefits was not a violation of the Canadian Human Rights Act.  The complainants argued discrimination on the basis of age because, until 1980, there was a rule that an employee could not join the pension plan if s/he joined the company after age 40.  The court found that the age restriction was legal at the time it was imposed and that the buy-back option discriminated not on the basis of age but on the basis of when one became a member of the plan.

Section 22 of the Ontario Code provides that automobile, life, accident, sickness or disability insurance, group insurance or life annuity policies that are outside of the employment context may make distinctions based on age, sex, marital and family status, or handicap, but these distinctions must be made on reasonable and bona fide grounds.

Seniority

It is not permissible to use date of birth to assign seniority when more than one employee is hired on the same day^[106].

Termination of Employment

A review of Tribunal decisions and a survey of Commission complaints indicates that it is very difficult for an employee to establish a prima facie case of age discrimination when terminated from employment. Employers often terminate older employees citing poor performance or after workplace downsizing or reorganization. 

In this latter example, many of the negative stereotypes that plague older persons come into play.  For example, an older employee may find her position declared redundant and may not be given another job within the organization because of a perception that her skills are limited to the job she has been doing (often for a long period of time) and that she is unable to adapt to a new position or learn to use new technology.  Another example, and one that was seen in a recent Commission case, is the situation where new management comes in and favours a “rejuvenation”^[107] of the workforce. 

If the complainant is able to establish a prima facie case of discrimination, it is very difficult for the employer to establish that the termination is justified on the basis that age is a BFOR (see earlier section on Age as a BFOR).

The decisions in Adams v. Bata Retail^[108] and Watchman v. Canada Safeway Ltd.^[109] provide two good examples of ‘typical’ cases in this area. In the first case, the Ontario Board of Inquiry did not find age discrimination but found that the complainant’s employment was terminated primarily on the basis of unsatisfactory performance and also because the company was making changes in an effort to overcome financial difficulties.  Similarly, in the second case, the complainant’s demotion was found to be because of work performance. 

The decision in Kearns v. Dickson Trucking Ltd.^[110] is one example of a case in which age discrimination was successfully made out.  However, the evidence in that case was overwhelming and there was no other reasonable explanation for the termination.  The complainant, a 69-year-old salesman, was the best in the organization and there were no complaints at any time about his performance.  He was terminated on the basis of “a lack of potential in the area serviced by him”, however, the first time this issue was ever raised was in the letter of termination.  His position was not declared redundant but rather was filled by a younger person.  Mr. Kearns was awarded damages for lost wages and for hurt feelings and self-respect.

Of course, employers are not precluded from terminating older employees where there are legitimate performance concerns.  However, it should not be the case that age discrimination will only be found where employees who are the best in their organization, or who have an absolutely exemplary work record, are terminated.  In other words, there should be some middle ground between these two extremes.  The goal of the Commission’s policy development on age should be to define this middle ground. 

With respect to cases of targeting older employees in an effort to achieve downsizing objectives, one case stands as a good example.   In Mckee v. Hayes-Dana Inc.^[111], the Board of Inquiry found age discrimination.  The employer underwent a downsizing and a number of staff, including the complainant, were interviewed and informed of the need for staff reduction.  Two options were offered: lay-off with full salary and benefits for six months, followed by separation pay or early retirement with adjusted pension so there would be no reduction in pension benefits.  The complainant accepted the latter option.  When determining who among the staff to reduce, the vice-president prepared a note stating that the company “hoped to keep people with career potential”.  In the past, lay-offs had been conducted on the basis of seniority. 

On this evidence, the Board concluded that age was part of the reason for the selection of the complainant.  The note indicated the company intended to keep people who were not on the verge of retirement and had many years of service left: “The phrase may be a euphemism; its meaning concerns age”.  Age was found to be a motivating factor for the termination and a prima facie case was established.  What is also interesting about this case is the fact that the complainant was offered a generous early retirement package did not detract from the finding of discrimination or the awarding of damages.  In other words, an early retirement option that is not voluntary, no matter how generous, does not defeat a case of age discrimination.