New Brunswick issues new guide against age discrimination

“Age-discrimination protections granted in the act apply to persons of all ages, so children and young adults are also protected,” says Claire Roussel-Sullivan, chair of the New Brunswick Human Rights Commission. “In this context, the publication of the guideline is timely, as it coincides with the Canadian government’s implementation of the United Nations (UN) Human Rights Committee’s recommendations related to the UN’s Convention on the Rights of the Child.”

Widespread ageist views may be responsible for persistent negative beliefs and attitudes about older workers and their role in the workforce, according to a previous report from Employment and Social Development Canada.

Complex category

In Guideline on Age Discrimination, the provincial government noted that age as a category of discrimination is complex. This is because while a person’s age is never fixed, everyone will go through the process of aging, presuming that they don’t die early.

Because of the complexity of age as a category, discrimination based on age has been relatively difficult to define, quantify, and address, according to the New Brunswick document. However, the following aspects about age as a ground of discrimination may be noted at the outset:

• Like gender, race, ancestry, and other forms of discrimination, age discrimination is also to a large extent built into institutional structures.
• Persons discriminated against based on age are particularly vulnerable to discrimination because age-based discriminatory policies are more likely to be accepted as normal or justified.
• People who face discrimination due to their age are also more likely to identify with other vulnerabilities, like disability, gender, or race, which compounds their experience of disadvantage.

Ageism and a lack of good job prospects stand in the way of future success, according to a previous LinkedIn study of global confidence.

Best practices

However, there are some practices that employers can turn to to avoid age discrimination, according to the new document. These include:

• Job advertisements should not include or hint at age limits, implicitly or explicitly.
• Hiring should be done and seen to be done on grounds of ability, not age.
• Individualized performance appraisals and not the age of employees should be the basis to assess job competence or work fitness.
• Older workers at risk of losing jobs should have the option of effective retraining programs, pre-retirement preparation, and flexible or phased retirement.
• Mandatory retirement should not be implicitly or explicitly imposed on employees. It should be replaced by more flexible arrangements like phased retirement (or flexible retirement), “decade of retirement”, and part-time work, to avoid the traumatic “cliff edge” switch from full-time work to total retirement.

“With New Brunswick’s evolving multicultural and multi-ethnic demographic, emergence of new rights-holders, an aging population, and renewed awareness of systemic discrimination, employers and housing and service providers must embrace core human rights values and principles to usher systemic social change in the province,” says Roussel-Sullivan. “By eliminating age-discriminatory practices and attitudes, we will move closer to the vision of a rights-friendly, equal and inclusive society.”

Facebook case

Recently, the Quebec Court of Appeal approved a class-action lawsuit claiming that Facebook discriminated against users of the social media platform by allowing advertisers to target job ads based on factors that include age, along with gender and race, according to a CBC report.

The class action could include thousands of Quebec residents who have used Facebook since 2016 and who were looking for jobs or housing during that period.

The ruling "offers a way forward for claims that might otherwise never be brought,” says Audrey Boctor, a lawyer with the Montreal law firm IMK, who launched the class action application in 2019, in the report.

"Algorithmic discrimination that excludes people such as women and older workers from receiving employment advertisements is just a modern form of the same type of discrimination that is illegal under the Quebec Charter,” says Boctor, who estimates the class action could involve $100 million in damages.