Age discrimination emerges as workplace issue
Agood tactic for the older employee who feels nudged toward the door is to ask for help because of age, says Toronto employment lawyer David Whitten. Most employees do the opposite. “Most people go, ‘No, no, no — I’m not going to admit that, no way, the last thing I’m going to point to is my age,’” he says. “That’s their biggest and most damaging mistake.”
Age discrimination is emerging as a major workplace issue, Whitten said in an interview. Increasingly, he feels workplaces are becoming an arena for conflict between employees trying to keep their jobs and employers trying to push them out.
“With the tidal wave of boomers entering their 60s, a surge in age discrimination is inevitable. One of the trademarks of this trend will be deception. Any attempt to get rid of the over-60 crowd will have to be carefully disguised.”
Bosses are getting smarter, says Whitten, a partner at Whitten & Lublin. “Shrewd employers will terminate, say, 10 people. Seven will be old and a few token younger ones will be thrown in to mix it up a bit — to make it not look like they’ve targeted older employees.” The tactic often works. “Because there’s not just one man or woman being shown the door, there’s a crowd of them, the perception is different,” he says. At the same time, anti-ageism legislation is getting tougher. Formerly in Ontario an employer could legally force an employee to retire at 65. In 2007, the provincial law was revoked and federal legislation is being amended to prohibit mandatory retirement, Whitten says. Two years ago, changes were also made to Ontario human rights legislation. An employee going to court now for wrongful dismissal, say, can bundle a human rights complaint into the court case. “This is a bit of a game-changer because most judges are over 55,” he says. “You go in there and say, ‘I’m being discriminated against because I’m 60 and they say I can’t do the job any more, and you’re looking at a 65-year-old judge.” An older employee who feels targeted would be smart to make age the issue, he says. “It’s kind of counter-intuitive,” the lawyer says. “Employees can defend themselves by coming forward and saying, ‘I’m having memory issues,’ or ‘my co-ordination isn’t perhaps what it used to be, I need some help.’ The moment you’ve given your employer notice that your advancing age might be impacting your ability to do something — under human rights legislation they have to accommodate that.” If the boss says, “The job now requires online skills and you don’t have them,” the informed employee replies, “Those skills weren’t needed when I started, can I take some training?”
And if the boss says, “We just have to terminate this guy, he’s never going to get up to speed, he’s basically admitted it,” the informed employee has already put age on the record.
“If they terminate you,” Whitten says, “you are in a position to challenge that termination because you can point to the email asking for help.
“Instead of helping, they fired you and where has your age been accommodated?”
In a dispute, a firm must prove that it took steps to accommodate age to the point of undue hardship — a difficult and time-consuming task, the lawyer says.