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Case law gap in age-related workplace discrimination

|Written By Yamri Taddese

Although people are living and working longer, guidance on how to accommodate older workers’ needs in the workplace hasn’t been up to speed, human right lawyers say.

According to the Ontario Human Rights Tribunal, employment-related discrimination topped the list of most common complaints the tribunal received in the last year.

About 75 per cent of all grievances brought before the tribunal in 2011-2012 were filed under the employment area, and disability was the reason 52 per cent of all applicants felt they were discriminated.

At a human rights law summit hosted by the Law Society of Upper Canada this week, panelists said there is a gap in the case law that makes it difficult to address workplace discrimination based on age-related disability.

“We have very little understanding of the characteristics of aging that might require accommodation in the work place under s. 11 [of the Ontario Human Rights Code],” said Susan Ursel, a human rights lawyer and partner with Ursel Phillips Fellows Hopkinson LLP.

“As I review the jurisprudence, this area isn’t as robust as we’d like it to be.”

While arthritis is considered a disability, for example, slowing down or losing mental sharpness is simply considered a natural part of aging.

But the issue is two-fold, she said, adding that workers’ unwillingness to label themselves as disabled adds to the problem.

“They do not ask for accommodations in the work place because it’s frequently considered only to be available with respect to disability,” she said. “And they don’t want to be seen as disabled . . . they think that’s a double jeopardy.”

Although the abolishment of mandatory retirement means there are more older workers in the workplace than ever, employers’ expectation of competitive and flexible workers hasn’t budged, she said.

“There continues to be a deeply embedded view that high standards of perfection are acceptable [for older workers].”

Labor and employment lawyer Lauri Reesor, a partner at Hicks Morley Hamilton Stewart Storie LLP, said encouraging older workers to retire also constitutes discrimination.

“It’s critical that retirement remains a voluntary process,” she said. “Employers can’t force employees to identify a specific retirement date.”

But once an employee has identified retirement date, Reesor added it’s not discriminatory to use that information to make decisions.

With 20 per cent of all applications filed under it, discrimination in accessing goods, services and facilities was the second-most common complaint area in 2011-2012.

Grievances based on sex-related discrimination were second to disability in number, while racial background was the third0most common complaint.


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