Job reinstatement, back pay and a $15,000 fine: an expensive reminder that even if age discrimination isn’t the only reason for job loss, it could still land you in court.
Think your employees aged 60+ are going to be ready to retire at 65? It might be time to clarify their plans, so you don’t end up in the same situation as one Alberta agency.
When Joan Cowling’s position at the Alberta Department of Employment and Immigration (now the Department of Human Services) wasn’t renewed in 2007, Cowling, then 67, applied for a similar position at the organization but did not get the job.
The organization had a number of valid reasons for not re-hiring Cowling, however, when she brought the case before the Alberta Human Rights Commission, the commission found age was a factor, although not the main motivation. The firm was ordered to pay Cowling five years’ worth of back pay, fined $15,000 and rehire her. The organization is appealing the decision.
“Age or some other kind of discrimination doesn’t need to be the only reason. If it is a factor at all, that is a breach of the human rights legislation,” Miller Thomson employment lawyer Thomas Duke said. “Employers need to be conscious that any of the prohibited grounds are not a factor in any decision that’s made.”
As boomers approach retirement age it’s important to know what their plans are. There is a significant portion of the working population that want to work past 60 and knowing what people are intending to do is vital for succession planning. While employers need to be careful not to ask discriminatory questions, having a sense of your employees’ plans and aspirations would help with planning and strategic decisions.
“Most organizations still have annual review processes. These are opportunities to have a discussion about someone’s long-term plans,” Duke said. “As part of annual review discussion, ask about long-term plans and aspirations. It’s not a discriminatory question and it’s good to know employee’s plans regardless of age and seniority.”
When making hiring or career pathing decisions, it’s important to consciously focus on performance, and acknowledge that age cannot be a factor.
The court focused partly on the fact that the job was described as a “junior developmental role”. This and similar phrases are “fairly innocuous” and not usually discriminatory, according to Duke. However, it’s easy for recruiters to assume that junior refers to a young person, so make sure you’re keeping an open mind when vetting resumes.
