Labour & Employment Newsletter

Age Discrimination in the Workplace: What is the state for older workers?

Winter 2019

The Province of Nova Scotia eliminated mandatory retirement effective on July 1st of 2009 (there are a few exceptions but, for the most part, mandatory retirement is no longer permissible).  In the decade since then, the presence of an increasing number of older employees has raised a number of issues. This newsletter looks at the impact the elimination of mandatory retirement has had on the workplace and provides some pointers for employers to help them deal with the increasing numbers of people who remain in the workplace after age 65.

The Province of Nova Scotia eliminated mandatory retirement effective July 1, 2009.  The impact in the workplace since then has been significant, with many workers remaining after age 65 (we refer to them as “seniors” in this newsletter).  In fact, Statistics Canada reports that, across the country in 2015, one in five Canadians aged 65 and older – that’s nearly 1.1 million people – reported working during the year.  That percentage is the highest since the 1981 census.  Further, the percentage of seniors who reported working nearly doubled between 1995 and 2015, with most of the increase coming from part-year or part-time work.  Increases in work activity were observed for women and men.  Interestingly, seniors living in rural areas were more likely to continue working than seniors in urban areas.  Those numbers are consistent with what our clients tell us.

Reasons for working past age 65 are diverse: some seniors need the money; some stay to access benefit plans; some stay because they like some aspect of the working world.

The Human Rights Act in Nova Scotia continues to prohibit discrimination in employment on the basis of age, among other reasons.  Legislation in other provinces does the same.  There have been complaints of age discrimination from older employees over the last decade. For instance, in Ontario, the recent decision of Talos v. Grand Erie District School Board, 2018 HRTO 680, raises important issues about the provision of health benefits to employees age 65 and older.  In that case, Mr. Talos was a secondary school teacher.  The terms of his contract indicated that health benefits ceased when he reached age 65.  However, the Human Rights Code in Ontario contained some language that permitted termination of health benefits at age 65.  Mr. Talos filed a complaint that the provision in the Human Rights Code violated his equality rights under the Canadian Charter of Rights and Freedoms.  The Ontario Human Rights Tribunal agreed with him.  The Tribunal does not have the ability to actually declare the provision in the Human Rights Code to be invalid.  A Court would have to take that step.  However, the Tribunal can rule, as this one did, that it will not apply the offending section to the situation at hand.

An immediate implication of this award is that Mr. Talos’ employer clearly needed to review and perhaps revise its employment benefit plans or turn its mind to some other way of ensuring that older employees are not discriminated against.

Employers can take other steps, too.  The following pointers might help:

  1. Do not assume that because an employee is older, he or she cannot perform the full scope of their job. Many employees continue to be very vibrant.
  2. If an employee cannot fulfill the full scope of his or her job, be aware that the employer may have a duty to accommodate to the point of undue hardship.
  3. While accommodation can take many forms, employers should consider steps such as implementing flexible work schedules, rotating repetitive tasks, etc.
  4. Accommodation could potentially require changes to the physical workplace and/or equipment. An older employee might, for instance, need brighter lights or larger computer screens.
  5. Do not exclude older employees from training opportunities or advancement simply because of their age.
  6. Actively promote your workplace as an age-inclusive on eat all points on the spectrum. Given that it is 2019, workplaces could have some employees born in the 21st century, and some born during World War II.
  7. Perhaps consider gradual ease-outs from the workplace. Many people keep working not for financial reasons but because work has given them an identity for most of the years of their adult life.  Some individuals might need time to transition to not working.  A wise employer might consider whether that is a viable option in their workplace.

Each situation will, of course, turn on its own facts.  Each employer will therefore have to analyze its own workplace to determine how it can allow older employees to function.  We hope that this newsletter has alerted you to the issue of seniors in the workplace and steps you might consider.

This newsletter is produced by Wickwire Holm to keep our clients and friends informed of developments in the law and emerging issues. It is intended for general information purposes only. In preparing and circulating this newsletter, Wickwire Holm is not providing legal or other professional advice. Readers are encouraged to consult their professional advisers before taking any action on the basis of information contained in this newsletter. If you have any questions about any issues raised within this newsletter or a related issue, please contact us at wh@wickwireholm.com or 902.429.4111.