Age discrimination, otherwise referred to as ageism, can arise in a number of ways in the workplace. Ageism arises wherever an employee or potential employee is treated differently or unfairly because of their age. For younger persons, this may arise through an employer’s intention on hiring a more “mature” employee. For older persons, the same could arise through an employer’s intention to maintain a “youthful culture” in the workplace. These attitudes are grounded in negative stereotypical beliefs about aging – the young are inexperienced, immature, unreliable, while the old are slow, inefficient, and out of teach. This is discrimination. Notably, workplace discrimination against younger persons is just as objectionable as discrimination against older workers.

Thankfully, discrimination of this kind is actually illegal in Ontario pursuant to the Ontario Human Rights Code. No person over the age of 18 can be discriminated against in relation to their employment on the basis of their age.

The Human Rights Code

According to Section 5 of the Ontario Human Rights Code:

Every person who is an employee has a right to freedom from harassment in the workplace by the employer … or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability” (emphasis added).

This section provides a fairly comprehensive list of grounds upon which an employee cannot be discriminated against. Clearly, age is included. Under the Human Rights Code, an employer cannot, among other things:

  • Refuse to hire, train or promote an employee because of their age;
  • Target certain employees because of their age in making reorganizing decisions; or,
  • Mandate retirement after a certain age.

Proving Age Discrimination

An employee who believes they have been discriminated against on the basis of their age must first start by establishing a prima facie case of discrimination. A prima facie case requires the employee to show that the employee’s case, if believed, and without additional evidence, would support the inference that it is more likely than not that the employer’s actions were discriminatory. In establishing such a case, age need only be a factor, not the only factor. Age discrimination is not an easy case to make. It is difficult to prove on a balance of probabilities, and results have been very mixed.

A Successful Age Discrimination Case: Perk v. Seel, 2004 BCHRT 277

In this case, Ms. Perk filed a representative complaint on behalf of her mother, Ms. Flemminks. Ms. Flemminks was fired from her job as a restaurant server when she was 56 years old. Notably, the restaurant had recently switched ownership and the new owner was hiring many employees much younger than Ms. Flemminks and was reducing the hours of the somewhat older employees who were already employed. Supposedly, the new ownership felt they needed to hire younger servers to increase business.

In reviewing Ms. Flemminks case, the British Columbia Human Rights Tribunal was satisfied that Ms. Flemminks’ age played a role in her termination. The new ownership was hiring younger servers and was preferential towards these younger servers in the allocation of hours. There was, therefore, a prima facie case of discrimination on these facts. Unfortunately for the employer, they provided no evidence at the hearing and were consequently unable to rebut the prima facie case against them. As a result, the employer was found to have breached the Human Rights Code by refusing to employ Ms. Flemminks on the basis of her age.

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