Age Discrimination in the Workplace Presented by: Rajeev Burman, Legal Counsel Jane Zhang, Legal Counsel April 23, 2019
Age Discrimination in the Workplace
Presented by: Rajeev Burman, Legal Counsel
Jane Zhang, Legal Counsel
April 23, 2019
Agenda
1. Introduction
2. Age Discrimination v Ageism
3. Ontario Human Rights Code
4. Proving Age Discrimination
5. Age Discrimination in the Workplace
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Agenda(con’t)
6. Ageism in the Workplace
7. Assumptions / Stereotypes
8. What to do when conflicts arise?
9. Ageism in the workplace – let’s talk
10. Q&A
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Introduction
• Demographics
• Millennials vs. Boomers
• End of Mandatory Retirement in 2006 & Delayed Retirement
• Nearly 20% of all workplace human-rights claims filed in Ontarioallege age discrimination
• Average Retirement Age is 63; Canadians aged 55 plus account for 38%of working population
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Age Discrimination And Ageism
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Age discrimination Ageism
Treating persons in an unequal fashion due to
age in a way that is contrary to human rights
law
A socially constructed way of thinking about
older/younger persons based on negative attitudes
and stereotypes about an age group and therefore
failing to respond to the real needs of the particular
age group
Acting upon ageism to cause adverse effect Cause for individual acts of age discrimination
Can be subtle, nuanced, unintentional and difficult to prove
One of the mostly socially condoned/tolerated forms of prejudice/discrimination
Ontario Human Rights Code
Section 5(1) of the Code prohibits discrimination in employment:
Every person has a right to equal treatment with respect to employment
without discrimination because of race, ancestry, place of origin, colour,
ethnic origin, citizenship, creed, sex, sexual orientation, gender identity,
gender expression, age, record of offences, marital status, family status
or disability (emphasis added).
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Proving Age Discrimination
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Establish the elements of age discrimination:
• Age
• Adverse effect (example, benefits)
• Nexus
Employer Defence:
• BFOR (adverse effect)
Age Discrimination and Work
Situations
The Human Rights Code forbids discrimination when it comes to any aspect of
employment, including, but not limited to:
• Hiring/Interviews
• Job assignments
• Promotions
• Layoff/Termination
• Training
• Benefits 8
Hiring/Interviews
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Senior Nurses Junior Nurses
“career potential”
“more mature, professional”“overly qualified”
“high energy and
enthusiasm”
Reiss v CCH Canadian Limited, 2013 HRTO 764, 76
C.H.R.R. D/391 (OHRT) : employer’s agent told applicant
that employer was looking for someone “more junior in their
experiences”
Training /Seniority
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• What benefit would this training program be at your age?
• Dalton v Canadian Human Rights Commission (1985) : assigning
seniority based on birth date when more than 1 employee is hired on
same day
Termination/Layoff
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• Kearns v Dickson Trucking LTD : terminated on the basis of “
lack of potential” and replaced by younger person
• McKee v Hayes-Dana Inc. : Employer underwent downsizing.
Layoffs were not conducted on the basis of seniority. Rather,
VP stated that company “hoped to keep people with career
potential”
Examples of Ageism in the
Workplace
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• Performance Management
• Termination/Restructuring/Layoffs w/ replacement by younger employee
• Hiring & Promotions & Opportunities
• Creating Conditions that Force Retirement
• Promoting a "Youthful Culture" - e.g. Tech sector
Assumptions/Stereotypes about
Younger/Older Workers
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• Older - lower productivity, resistance to new technology, costly in terms of
wages/benefits/vacation, safety risks, difficult to teach/train, more likely to
be sick/absent/health issues, less invested in workplace
• Younger - lack of strong work ethic, entitled, too engrossed in technology,
want to have more flexible schedules & work-life balance, unwilling to pay
"dues", lack professionalism, lack experience
Assumptions/Stereotypes about
Younger/Older Workers
(con’t)
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• Unfair perceptions can influence decisions about hiring, promotion,
training, retention.
• Generational Irony is that many of the negatively held assumptions about
millennials were also said about previous generations when they were
young workers (Gen X, Boomers)
What to do when Conflict Arises?
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• Discussion
• Other "In-House" Options
• Ageism amongst colleagues - younger & older nurses
• Example - How to deal with Patient/Family when clear they would prefer a
younger/older nurse to be assigned
• Filing a Grievance
Ageism in the Workplace - Let’s
Talk
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A discussion with Pam Mancuso, Board of Directors and Celine Messier,
member of ONA’s Human Rights Committee:
• Value of Mentorship vs. Workload Dilemma
• Advice to Junior/Senior Nurses in the Workplace
Resources
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• Human Rights and Equity: A Guide for ONA Members
http://www.ona.org/human rights equity/resources.html
• Human Rights Commission
http://www.ohrc.on.ca/en/search/site/age%20discrimination
Questions?
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Thank you!
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