In previous generations, a career was a linear progression. An employee would have started with a company right out of high school (or possibly after some post-secondary education), and likely would have stayed with that same company for roughly four decades. When they reached the golden age of retirement (often age 65), they were given a gold watch, a celebratory luncheon, and then shown the door. Changing employers was rare; working past ‘retirement age’ was practically unheard of.
Of course, times have changed significantly in recent years. Workplaces have become more competitive, often scaling up or downsizing their workforce depending on their business needs. Employees rarely stay with the same company for their entire career, and they are no longer afraid to seek better career opportunities elsewhere. Perhaps most notably, with the elimination of mandatory retirement age across the country, older workers are no longer being ‘shown the door’ as quickly as before.
Delay in retirement past the traditional golden age can make it difficult for employers who want to engage in a long-term strategy or succession planning. It can also be awkward for the employer when older workers don’t perform at the level they used to. In the past, employers would tolerate the situation knowing that the employee would be retiring soon, and that it would allow the worker to end their career with dignity. Now, employers are often left considering performance management of a senior worker, which is difficult for everyone involved.
What does the law say about age discrimination in the workplace?
As one might expect, there is clear law that protects against age discrimination in the workplace. While several provinces once had mandatory retirement ages, those were eliminated roughly 15 years ago, and so there is no longer a legal limit on when a person can no longer work.
Moreover, Canadian human rights law provide protection against age discrimination. Both federal and provincial human rights codes protect employees from being discriminated against based on a variety of grounds, including their age. This means that legally, a worker cannot be singled out, picked on, or discriminated against based on their age.
In fact, the only time that such conduct is legal is on the other end of the spectrum. Aside from minimum working ages across the country, there are also some job characteristics that might require workers to be of a certain age. If a job requires an employee to possess a full drivers’ license for example, and such a license is a bona fide occupational requirement, then an employee who is too young to obtain that license would not qualify for the role.
What sorts of age discrimination do employees endure?
While employers may be able to prohibit some employees because of their youth, that does not equate to being able to automatically disqualify an employee from handling certain roles because of their age. Assuming an employee cannot lift a certain amount of weight, or that they cannot be on their feet for a certain length of time because of their age is discriminatory and is one of the subtle examples of age discrimination that older employees regularly face.
Inappropriate Jokes and Teasing about Age
Older employees are regularly subject to inappropriate jokes and teasing, or even outright bullying and harassment simply due to their age. Repeatedly questioning an older co-worker as to when they plan on retiring or making jokes about their age and any health issues that they may face due to their age is harassment, and not appropriate in the workplace. In a more collegial atmosphere these jokes may be good natured, and the employee may even join in, but that does not make it okay, and it may not be acceptable to all employees.
Inappropriate Assumptions about Capabilities
With workplaces moving increasingly towards an online environment, it may be difficult for some older workers to adapt to new technologies, but this is not a universal rule. While some older workers may take a bit longer adapting to new machines or new software, others may be technologically savvy and have no issues whatsoever. This can be true of workers of any age and discounting an employee’s capabilities based on their age is another common form of discrimination. Employees of all ages should be offered the tools that they need to succeed in their role.
What can employers do about age discrimination?
Employers need to be aware, and to make their teams aware, that age discrimination (and discrimination in any form) is not acceptable. Employers are required to enact workplace harassment policies, and to use these policies to outline that unwelcome comments, inappropriate remarks, hurtful jokes etc. are prohibited in the workplace. Failure of the employees to adhere to these policies can (and should) be met with punishment from the employer.
Employers should also be careful in handling older employees and their age. Asking an older employee repeatedly about their plan for retirement, or speaking openly about them ‘slowing down’ may not be done with malicious intent, but it unfairly singles out this employee, and violates their protected rights provided to them under both federal and provincial human rights codes.
There are delicate ways to have conversations about succession planning issues, but these conversations must be done with strategy and with great tact. Employment lawyers and HR professionals are well-equipped at guiding employers through these conversations so as not to inadvertently discriminate against these employees.
Older workers can bring a tremendous amount of talent and experience to the workplace and employers should not take these employees for granted. Treating them differently, simply on account of their age, is not only poor form – it is also against the law.
