Avoid age discrimination accusations

Canada’s aging employee population is changing the Canadian workplace. Employees are choosing to work well beyond age 65 for a number ofreasons: to stay busy; to maintain an income stream; or maybe even to pay for their grown kids who have moved back home.

Since mandatory retirement is, for the most part, no longer with us, the challenge for human resource professionals is how to manage a maturing work force who have their own set of issues and challenges, but can be valuable and productive workers for a long period of time.

Here are some practical tips to avoid some of the problems associated with the hiring and management of older workers. The list is not exhaustive, and each workplace is different, but there are common themes which may assist in avoiding unhappy older employees and legal liability.

The Application and Hiring Process

• Do not advertise for “young” workers – avoid all descriptions that imply age as opposed to qualification or experience.
• Application materials may ask whether the potential employee is 18 years or older and less than 65 years of age, however, they should not ask any other questions about or relating to age or date of birth.
• If there are physical demands to the job, make sure they are clearly communicated and relate specifically to requirements of the job.
• Have new employees enter into a valid employment agreement, regardless of age. Because age is a factor considered by courts in determining the appropriate period of reasonable notice at common law, a termination provision limiting notice or payment in lieu of notice on termination can reduce liability significantly.

Performance Issues

• Apply the same objective performance standards to all employees – do not treat older employees any differently.
• Give older employees the same opportunities for training and career advancement as other employees.
• Provide detailed job descriptions which provide clear performance requirements and targets. If an older employee is passed over for a job promotion, this will help to document the promotion decision.
• Accommodate where necessary and possible. Request and determine any limitations and/or restrictions. Conduct a vigorous examination as to whether or not accommodation is a possibility looking at possible options and alternatives. Look for modifications to the job where appropriate.

End of Employment

• Do not assume that an employee is ready to retire, just because they have become eligible for their pension. Treat the employee with dignity and respect.
• Do not assume that an older worker will be less impacted by a termination decision – use objective criteria at all times to determine any terminations.
• Review history of other terminations in the workplace. Are most of the workers who have been terminated older? Is there a possibility of a claim for systemic discrimination based on age?

 
Lorenzo Lisi is a partner and member of the Litigation Group and the Labour & Employment Team at Aird & Berlis LLP. [email protected]