(As of June 1, 2015)
Guidelines are not law. These guidelines reflect the Newfoundland and Labrador Human Rights Commission’s interpretation of the provisions of the Newfoundland and Labrador Human Rights Act, 2010 (“the Act”) and various legal decisions from across Canada with respect to age and age-based discrimination in the context of employment. They are subject to decisions by Boards of Inquiry (called Tribunals in some provinces) and the Courts and should be read in conjunction with such decisions and with the specific language of the Act. Readers should be aware that as with all areas of law, legal obligations may evolve as new decisions emerge. If there is any conflict between these guidelines and the Act, the Act will prevail. Any questions regarding these guidelines should be directed to Commission staff. These guidelines should not be substituted for legal advice.
Introduction
All jurisdictions in Canada provide for protection from discrimination on the basis of age in employment, however, the specific wording and exceptions vary in the Human Rights legislation across the provinces and territories. While at one point mandatory retirement was permitted under Human Rights laws, with some exceptions, the laws have been changed to abolish mandatory retirement.[1]
The Human Rights Act, 2010 (“the Act”) in this province prohibits discrimination based on age in the advertising, interviewing, hiring, promoting and termination processes of the employer.[2] While this guideline deals exclusively with age and age-based discrimination in the context of employment, the Act also prohibits discrimination based on age in the provision of goods, services, accommodation or facilities that are customarily offered to the public in the context of commercial and residential tenancy, publications, and contracts.[3]
What is age-based discrimination in employment?
Unlike the earlier Human Rights Code, the current Act makes no reference to specific ages as it applies to discrimination in employment.[4]
Employment policies or practices which apply particular age limits or maximums for hiring, promoting or retiring will generally be found to be discriminatory unless a bona fide or “good faith” occupational qualification can be established. For example, in a case involving airline pilots it was decided that although the airline’s mandatory retirement of pilots at age 60 under the terms of its collective agreement was prima facie (based on the first impression) discriminatory, it was not determined ultimately to be a discriminatory practice as the airline was able to establish, on a balance of probabilities, that the limitation was based on a bona fide occupational requirement, and that accommodating the pilots who were over 60 years of age would result in undue hardship to the airline.[5]
It is generally discriminatory to advertise based on age in filling job vacancies and in recruiting new employees. Candidates for employment are protected from having to disclose their age on an application form or in the interview process. Where such questions are relevant to an employer’s pension or group benefit plan, the employer is entitled to request the information only after a job offer has been made. While the date of birth of the applicant may be necessary for the conduct of a criminal records check or vulnerable sector check, employers should make job offers conditional upon a satisfactory criminal record or vulnerable sector check to avoid the necessity to seek age-related information prior to the offer of employment.
Further, there are exceptions in the Act which protect the operation of pension and retirement plans as well as group insurance plans with certain age limits for entitlement.[6] However, a pension or retirement plan would be discriminatory if it required a person to retire at a specific age.[7]
Employers must be particularly careful when it comes to succession planning that they do not discriminate against their older employees. While an employer’s inquiry into an employee’s age and retirement plans may be legitimate in the context of planning for the future operation of the business, any comments about the employee’s age which could be perceived as stating an expectation or encouraging the employee to retire may be found to be discriminatory. Similarly, skill development and training should also continue to be offered to employees at all ages. The use of terminology relating to age could be determined to be evidence of discrimination.
It is not necessarily discriminatory to treat an employee differently once they have announced their retirement date. For instance, if an employee informs their manager that they are going to retire in six months, it is reasonable and appropriate for the manager to take that information into account when planning for the future. A manager may deny the employee access to a training program on the ground that it will produce little benefit since the employee is planning to retire.
However, discrimination may arise when an assumption is made that because the employee is at the age of retirement that they will retire. Similarly, encouraging an older employee to take advantage of retirement options might result in discrimination because the message taken may be that the employee is no longer valued. However, merely providing information about the employee’s retirement options is not discriminatory, particularly when the information is provided at the employee’s request.[8]
What should an employer do to avoid a claim of age-based discrimination?
Employers should consider the following to avoid liability under Human Rights Act, 2010:
- Avoid any reference to age in the advertisement of jobs during the recruitment process.
- Do not require a person to state their age or date of birth on job applications or during the interview process. However, this information can be legitimately collected after a job offer has been made for purposes such as registering for group insurance or conducting a criminal records check.
- Ensure that your professional development and succession planning does not overlook older workers. Continue to offer mentoring, training and educational opportunities to all employees.
- Ask employees at all levels of seniority what their short –term and long-term goals are. This can include their plans for retirement.
- While making an inquiry into an employee’s retirement plans is likely not discriminatory, the employer should avoid using age-related terminology (particularly “older” and “younger”) when discussion retirement or succession planning.
- If an employee says that they have no plans for retirement soon then the conversation should end. Do not express surprise or disapproval and do not revisit the topic frequently. If an employer continues to press for more information or makes the assumption that an employee will be retiring just because they have reached the “retirement age” or have become fully pensionable, then they may have crossed the line into age discrimination.
- Employers may provide retirement information to an employee who is seeking it, but the employer should not suggest or encourage the employee to retire or say or do anything which may be perceived as pushing older workers to the side. For example, a comment such as “we are looking for fresh faces” or “new blood” may be evidence of age discrimination.
Situations where age-based discrimination has been found in the work place:
Below are some examples where age-based discrimination has been found in the workplace:
- A stated age restriction for a student summer position was found to be discriminatory.
Example: Age discrimination has been found against the employer and the union where the student hiring program placed age restrictions on the program to limit it to full-time students between the ages of 18 and 24. The Complainant applied for a position but was told she was ineligible to apply for the program because she was 26 years of age at the time of her application.[9] - Using age related terminology to describe potential employees for recruitment can result in a successful claim of age discrimination.
Example: A 58-year-old district sales manager who had been off on disability and was preparing to return to work was told that her position had been eliminated. When she heard from other staff members that they had been instructed by their supervisor to hire only “dumb, young and good looking employees”, she filed a complaint alleging that the decision to terminate her was based in part on her age and was successful at the Board Hearing.[10] - Targeting older workers in the process of downsizing or lay-offs can result in a finding of discrimination.
Example: In a case involving government downsizing, a 55-year old manager who was pension eligible was terminated and told that his position was being eliminated. He later discovered that a younger manager was in fact placed in his position. His complaint that age was a factor in his termination was supported at the hearing by evidence that older workers were being targeted for lay off and a note referring to laying-off “older officials who have earned full pension instead of younger ones”.[11] - Asking about age and retirement plans can be evidence that age is a factor in the decision to terminate an employee.
Example: When an employee was in a meeting with her supervisor he remarked that he had heard that she had her “big birthday this year.” The employee confirmed that she would turn 60. The supervisor then asked if she had any plans to retire. The employee replied that retirement was not an affordable option for her yet. In a subsequent meeting her supervisor asked her again whether she had considered retirement. The employee replied that her financial advisor had informed her that she needed to work full-time until she was 65. Following this response, she was told that her services were no longer required, and that her employment was terminated.[12]
Relevant provisions
Link here to Section 14 of the Human Rights Act, 2010.
Discrimination in employment
- (1) An employer, or a person acting on behalf of an employer, shall not refuse to employ or to continue to employ or otherwise discriminate against a person in regard to employment or a term or condition of employment on the basis of a prohibited ground of discrimination, or because of the conviction for an offence that is unrelated to the employment of the person.
(2) Subsection (1) does not apply to the expression of a limitation, specification or preference based on a good faith occupational qualification.
(3) An employer, or a person acting on behalf of an employer, shall not use, in the hiring or recruitment of persons for employment, an employment agency that discriminates against a person seeking employment on the basis of a prohibited ground of discrimination.
(4) A trade union shall not exclude a person from full membership or expel or suspend or otherwise discriminate against one of its members or discriminate against a person in regard to his or her employment by an employer, on the basis of a prohibited ground of discrimination.
(5) A person shall not use or circulate a form of application for employment or publish an advertisement in connection with employment or prospective employment or make a written or oral inquiry in connection with employment that expresses either directly or indirectly
(a) a limitation, specification or preference based on a prohibited ground of discrimination; or
(b) an intent to
(i) dismiss from employment,
(ii) refuse to employ or rehire, or
(iii) discriminate against a person on the basis of a prohibited ground of discrimination,
but this subsection does not apply to the expression of a limitation, specification or preference based on a good faith occupational qualification.
(6) The provisions of subsections (1), (4) and (5) as to age shall not apply to
(a) prevent the operation of a good faith retirement or pension plan;
(b) operation of the terms or conditions of a good faith retirement or pension plan which have the effect of a minimum service requirement; or
(c) operation of the terms or conditions of a good faith group or employee insurance plan.
(7) Paragraph (6)(a) does not apply to a provision of a good faith retirement or pension plan requiring a person to retire at an age set out in the plan.
1 Etobicoke (Borough) v. Ontario Human Rights Commission [1982] 1 S.C.R. 202.
Where such schemes have been upheld the employer has been able to establish a bona fide occupational justification or qualification which saves the retirement scheme.
2 Human Rights Act, 2010, s. 14
3 Supra, s. 11, 12, 19 and 21.
4 The Human Rights Code, RSN 1990, c. H-14, s.9(1)(b) prohibited discrimination in employment based on age if that person had reached the age of 19 years and had not reached the age of 65 years.
5 Kelly & Vilven v. Air Canada and Air Canada Pilots Association, 2011 CHRT 10
6 Human Rights Act, 2010, s.14(6)
8 Mayo and NL Human Rights Commission v. Iron Ore Company of Canada and United Steelworkers of America, Local 5795 (2002), 43 C.H.R.R. D/65 (Nfld. Bd. Inq.)
9 Vallee v. Fairweather Ltd. (No. 3) (2012), 74 C.H.R.R. D/109
10 Salter v. Newfoundland (2001), 41 C.H.R.R. D/68
11 Deane v. Ontario (Community Safety and Correctional Services) 2011 HRTO 1863