Employers in Ontario cannot discriminate against employees because of age. This is because age is a protected ground under the Human Rights Code, 1990 (“Code”) and if an employer acts in a way that infringes the Code it could face serious legal consequences as a result. Both the young and old may experience age-related discrimination.
Age discrimination can manifest itself in a variety of ways in the workplace. For instance, an employer may deny an employee a job because they are “too old” or “too young” and the employer is seeking to promote a different image of the workplace. Similarly, if an employer’s job application refers to age, such a reference may be deemed discriminatory and in breach of the Code. Statements made in the course of an interview relating to a candidate’s age that may be somewhat indirect such as questioning a candidate’s “maturity level” or “ability to keep up” could be a potential violation of the Code, if such statements could be linked to age.
If age becomes a factor in the course of the employee’s employment or termination then the employer will be in violation of the Code and, as such, subject to legal redress. For instance, if an employer does not assign an employee certain tasks, excludes the employee from meetings or if the employer refuses to promote the employee because of age, the employee will be successful in alleging discrimination.
An employer is able to regard age as an adequate criterion as long as the employer can justify that age consideration is a bona fide occupational requirement. However, the circumstances where differentiation because of age may be permissible are extremely limited and any such employment policy, course of action or workplace standard would be carefully scrutinized by the Human Rights Tribunal or the courts. The onus that age is a properly held job requirement rests with the employer and employers seldom succeed in defending such a position.
Finally, with the exception of a few professions in the public sector, mandatory retirement is no longer permissible in Ontario unless the employer is able to argue that the retirement is a bona fide occupational requirement. For instance, if the employer forces an employee to “retire” at the age of 65 (or any other age for that matter) and the employee does not wish to retire, such a policy would be in contravention of the Code. An employer may offer retirement benefit programs to its employees but such programs have to be voluntary. A forced retirement program may result not only in an action for constructive dismissal but in various forms of relief under the Code including reinstatement, back wages and general damages.