Analysis and conclusions

General

Age cases tend to be treated differently than other discrimination cases, particularly where the case involves retirement issues. The most noticeable difference from a human rights perspective is the lack of a sense of moral opprobrium linked to age discrimination which, in comparable circumstances would generate outrage if the ground of discrimination were, say, race, sex or disability.

Stereotypes about older persons are used to justify age discrimination, stereotypes which the courts themselves, in some cases, appear to be supporting^[132]. This may be contrasted with the approach taken by the Supreme Court of Canada in the recent BC Firefighters case^[133], where the court indicated that impressionistic evidence about what individuals can and cannot do, which is based on gender, will likely be struck down as discriminatory.

The Significance of Demographics from a Human Rights Perspective

From a human rights perspective, age demographics are important for several reasons.  Firstly, a significant portion of the population (35%) is already 45 years or older and therefore potentially at risk for discrimination on the basis of age.  In coming years, as the population ages, the number of people who may experience discrimination on the basis of age in all the social areas covered by the Code will increase.  As well, as the number of persons over 65 will double and the seniors dependency ratio will sharply increase, mandatory retirement at 65, which is not a form of age discrimination under the Code, may have to be revisited.  The fact that 6% of seniors continue to be employed after age 65 is very significant as the Code only protects against discrimination in employment on the basis of age until age 65.

Finally the statistics indicate the need to consider discrimination in relation to services and facilities.  As 7% of seniors live in institutions and seniors tend to be major consumers of health care services, it is important to examine any discrimination issues that arise in relation to services and facilities.  Of course, there are other types of services and facilities accessed by seniors as well.

Employment

There are strong policy reasons for seeking to reverse attitudes towards age discrimination in the work place.  First, the population is aging and longer life expectancies are enabling persons to work productively for longer.  Empirical studies do not reveal a consistent relationship between age and job performance^[134].  Second, the "lump of labour" notion is a fallacy. Given the vastly different "value added" that is brought to the table by older workers as a function of their experience and acquired knowledge or networks, it is unclear that the strategy of "replacing" older workers with younger workers is possible, let alone effective.

At the broader social policy level, the strain on the public retirement income system will become considerable as the baby boomers start to draw on the system.^[135]

Given the fact that aging in Canada is linked to diminishing financial resources and increasing health issues,^[136] there are compelling reasons for keeping willing workers in the workforce and, consequently, for ensuring that there are appropriate protections for such workers. There are three distinct policy implications arising out of the employment portion of this paper.

The first relates to retirement. The constitutionality of maximum age limits for mandatory retirement seems well established and the Code itself restricts protection to the age of 65. However, there are still live issues with respect to early retirement schemes that subtly or otherwise seek to reduce the number of older workers in the workforce. The "downsizing defence" therefore has implications for investigations in age discrimination cases. Older workers should not be involuntarily forced out of the workforce through "rejuvenation" schemes, however subtle or carefully implemented. As a result, investigative tools that would assist human rights staff to distinguish between downsizing motivated by legitimate factors and that motivated by age bias would be useful.

In a related issue, and as with other types of discrimination cases in the workplace, the employer frequently advances performance problems or other legitimate reasons for job termination. These may be advanced as a defence alone, or in combination with the downsizing defence. While these reasons may be legitimate, they tend to neutralize or minimize the impact of evidence of age discrimination even if it is found. It should be remembered that all that is necessary to be proven is that age discrimination is one reason for the action, not necessarily the proximate cause. ^[137]

Strategies should be developed to address these cases, and could include analyses of standard circumstances such as:

• Whether a younger employee replaced an older one in the same or similar job functions;^[138]
• Whether the older worker's employment ratings were high, suddenly dropping with no explanation at the time of downsizing;
• Comments that point to ageism;
• Documents or memos that suggest age discrimination, such as announcements of the "rejuvenation" of the workforce;
• Patterns of eliminating older workers;
• Post-downsizing workplace profiles that are considerably younger, coupled with evidence that job descriptions did not significantly change or that new incumbents did not compete for their positions; an
• Impact on the older worker, such as age, salary, and opportunities for comparable employment, should also be considered.

Statistical adverse impact analysis models exist and are used in some jurisdictions.  These tools should be explored further to see if they can assist the Commission in analyzing downsizing situations.

The third policy issue relates to the aging of the work force coupled with the number of persons who continue to work over 65 years of age.^[139] It is difficult to justify a legislative scheme that allows for workers who do continue over 65 years of age to be discriminated against in employment, especially in non-unionized contexts where other protections such as grievance procedures are non-existent. Without any legislative protection related to age, and at a time when so much of the work environment is being influenced by new information technologies, older workers - a growing part of the work force - seem to be particularly vulnerable.

One option would therefore be a legislative amendment that would not challenge the right of an employer to impose mandatory retirement at sixty-five, but would allow for the continuation of human rights protection for employees who do continue to work after age 65.

Ontario would not be the only jurisdiction in Canada to have recognized the inequalities of limiting human rights protection to persons less than 65 years of age. In 1998, the British Columbia Human Rights Commission proposed a more far-reaching amendment.^[140] The Canadian Human Rights Act Review Panel has reviewed the mandatory retirement defence in that Act, including whether the defence should be eliminated altogether in the federal sector.  Research prepared for the Review Panel indicates that mandatory retirement may cause major economic and non-economic hardship to those older workers who would have continued to work if they had not been forced to retire.  This adverse impact is particularly severe for women and recent immigrants who, because of their career history, may not have sufficient retirement income from public and employer pension plans and personal RRSPs.^[141] It should also be noted that in the United States, the federal government has already passed legislation which will result in a phased-in approach that will raise the retirement age from 65 to 67^[142]. Accordingly, the trend in other jurisdictions is clearly to re-examine current mandatory retirement policies with a view to bringing them more in line with social realities.

Services

Inadequate service levels, particularly in the area of health care, appear to be the result of a health care system focused on restructuring and on investing in acute health care. The needs of older persons are less likely to be met in such a context.  For this reason, the Commission could communicate with the Ministry of Health to inquire about the investment in the medium to long term, in chronic care facilities, rehabilitation and complex continuing care. 

A second promotional activity would relate to communications with the College of Physicians and Surgeons and the Canadian Medical Association to report the discussion in this paper and to advise physicians that the Commission has taken the position that where differential medical treatment is based on age, this is a form of discrimination unless the criteria are reasonable and bona fide, subject to the defence of undue hardship. Moreover, in the case of older persons with disabilities, the higher standard of s. 17 of the Code would require individualized accommodation.

Third, the issue of public transportation is clearly critical to the lifestyle, self-sufficiency and dignity of older persons. It is therefore recommended that the principles adopted as a result of this paper be integrated into the Commission's report on the accessibility of mass transit systems in Ontario.

Housing

The Commission's ongoing work in the area of housing and on the ground of disability should reflect accessibility standards and the high standard of the undue hardship defence set out in the Commission's Guidelines for Assessing Accommodating Requirements for Persons with Disabilities.

In cases involving elderly complainants with or without disabilities, Commission staff should examine the guidelines provided by the National Advisory Council on Aging as a benchmark in investigations.