March 6, 2023

Can I Be Fired For Being Too Old? A Closer Look At Age Discrimination

Are you old enough to remember mandatory retirement in Ontario? Those years where, no matter how healthy you were or how much you wanted to keep working, your employer could offer you a gold watch or some other small token of appreciation and send you on your way with little recourse. 

The law in Ontario prohibited mandatory retirement as of 2006. At that time, Ontario’s Human Rights Code (the “Code”) was expanded to protect Ontarians over the age of 65. Where employees had no previous recourse to challenge a mandatory retirement policy, now any age discrimination is officially prohibited under the Code. 

Most employees in Ontario can continue working well into their 70s and 80s if they so choose. The harsh reality is that many older Ontarians are required to keep earning income in order to survive, and if age does begin to affect their performance, it can put employers in a tight spot. 

So what does the law say for employees and employers when it comes to old age? What recourse does an employee have if they’ve been wrongfully terminated? For employers, what options do they have if an older employee simply cannot cut it? 

The Code

The Code offers Ontarians protections in employment on a range of grounds so that employees can receive equal treatment without facing discrimination because of who they are. These grounds include sexual orientation, gender identity and expression, disability, marital status, family status, race, creed, record of offences, and yes, even age. 

There are, of course, exceptions to every rule. Some may apply to younger employees – such as the age when a person can legally begin to work. If an employee is required to drive for their role, for example, a person under 16 years of age can be refused the job because they are not old enough to have obtained the required drivers’ license. 

The latter is an example of a bona fide occupational requirement or a rule that employers can impose which is discriminatory but also required for the job. If a role requires employees to lift 20 kg boxes regularly, for example, and an employee with a disability is unable to perform that task, the employer can elect not to hire them on that basis. The rule must be made in good faith and must be essential for successful performance of the role. 

There are few bona fide occupational requirements that would require an employee to stop working at a certain age. Several of the most powerful global leaders today are in their 70s or even 80s, all of whom are capably filling the most high-stress jobs in the world. However, to apply the examples above, there may be situations where age leads to other complications.

If an employee’s advanced age has led to disability that causes them to lose their driver’s license, and driving is critical to the role, an employer may be able to let an employee go for that reason. Similarly, if infirmity has rendered an employee incapable of performing essential tasks, and there is medical evidence to prove as such, that may mean the end of employment. There are no clear rules or bright line tests. In every case, an employer will be required to determine if accommodation is possible without creating undue hardship.

Remember though – it is not permissible to let go of an employee for no other reason than because they are getting up in years!

What can employees do when facing discrimination?

For employees who have been discriminated against because of their age, remedial options exist. The Ontario Human Rights Tribunal was established to deal with issues specifically related to human rights and to give individuals who have faced discrimination a recourse to seek remedies. 

The Tribunal, as an adjudicative body, can order various remedies including payment to employees for injury to their dignity, feelings, or self respect, other damages in the case of extreme conduct, reinstatement of an employee who has been terminated, or human rights training for the employer. The Tribunal, while not a court, has very broad remedial authority to remedy discrimination in employment. 

Unfortunately for employees, the Tribunal is currently facing a severe backlog. If an employee files an application relating to discrimination from their employer, the employer might not even receive that application for a whole year, and then have the opportunity to respond. The system may be well-intended, but current wait times can make it difficult to access. 

For employees who have been let go from their employment, there are still civil remedies available, including negotiation, mediation, arbitration, or filing a claim against the employer. While the Tribunal cannot award damages for wrongful dismissal, a Court can award damages as well as compensation for breaches of the Human Rights Code.

A Smoother Exit for Employers

For employers, the lack of mandatory retirement can be a challenge. Not only does it make it difficult in some industries to make space for younger employees entering the workforce, but employers are often faced with difficult situations where an older employee, try as they might, can simply no longer keep up with the demands of the jobs. 

Employers must be careful to avoid discriminating against the employee solely based on their age. Making jokes, snide comments, or badgering an employee about when they will retire is discriminatory conduct, contrary to the Code. However, if an employer is looking towards the future, and an employee has talked about retirement, a soft touch might help bridge that gap. 

A well-structured conversation with the right legal advice can provide an employer with some insight about an employee’s intentions for long term employment. Regular performance feedback and communication about expectations will help identify issues before becoming a serious problem. Respect, dialogue, and careful planning with legal advice in the background is the path towards clarity and the avoidance of liability.

The Upshot

The bottom line is that there is no more mandatory retirement, and employers must be cautious about how they treat a greying workforce. However, that does not mean that an employer’s hands are tied in every situation, or that they must wait around for poor-performing employees to call the shots themselves. 

If you feel that you have been discriminated against due to your age, or you are an employer calculating how best to handle an older employee who can no longer do the job, a conversation with an employment lawyer is the best place to start. We have dealt with countless similar situations, and can provide tailored advice that will help outline some clearer courses of action. Contact us today to set up a consultation.