By Kathryn F. Hordienko
There is a growing trend towards the baby boomer generation working beyond typical retirement age—whether by choice or necessity. Steps taken by employers vis-à-vis the aging workforce can create new workplace challenges which must be taken into account to avoid or minimize liability exposure.
Discrimination on the Basis of “Age”
“Age” is one of the protected characteristics under human rights legislation, both in Manitoba and all other Canadian jurisdictions, including federal law. Treating an employee differently on the basis of their age, whether directly or systematically through company policies, can result in a finding of discrimination under The Human Rights Code (Manitoba), or the applicable provincial or federal legislation. Such discrimination exposes employers to remedies for the affected employees; for example, reinstatement of dismissed employees with back-pay (including loss of pension and benefits), orders to implement/revise company policies and/or payment of general damages to employees for loss of dignity and self-respect.
Although mandatory retirement has been abolished in most Canadian provinces, including Manitoba, human rights law permits mandatory retirement in some provinces when it is directly related to a pension, retirement or superannuation benefits plan. Manitoba human rights legislation does not specifically provide for these exceptions. In all provinces, it may be justified where proven to be a legitimate occupational requirement; however, the prospect of success of such an argument would be remote as it is unlikely an employer could justify retirement on a global basis, as opposed to an individual one.
Employers are obligated to accommodate the needs of older employees with respect to succession planning, corporate restructuring and establishing criteria for promotions, training and other workplace decisions. Failing to take the necessary precautions when addressing issues which affect aging employees can lead to liability under The Human Rights Code (Manitoba), the Canadian Human Rights Act for federal employees, and at common law for wrongful dismissal actions before the courts.
