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4.1 When is differential treatment discriminatory?
The purpose of anti-discrimination laws is to prevent the violation of human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice. In many cases, differential treatment because of age will clearly be discriminatory. However, in other cases, it may be necessary to consider whether the treatment can be said to constitute “discrimination” in the sense of being something that is protected by human rights law.
Some age-based criteria or qualifications are not based on stereotypes, are not offensive to human dignity and do not target a historically disadvantaged age group. For example, discounts on services for persons under 25 or over 55, retirement schemes that are based on a minimum age combined with years of service and measures aimed at facilitating the transition from full-time employment to retirement[8] would not likely be considered discrimination within the meaning of human rights law and policy.
In the context of equality claims under s. 15 of the Canadian Charter of Rights and Freedoms (the “Charter”), the Supreme Court of Canada has offered the following three broad inquiries as a tool for determining whether discrimination has occurred:
(1) Differential treatment
Was there substantively differential treatment, either because of a distinction, exclusion or preference, or because of a failure to take into account the individual’s already disadvantaged position within Canadian society?
(2) An Enumerated ground
Was the differential treatment based on an enumerated ground, in this case age?
(3) Discrimination in a substantive sense
Finally, does the differential treatment discriminate by imposing a burden upon, or withholding a benefit from, an individual? The discrimination might be based on stereotypes of a presumed group or personal characteristics, or might perpetuate or promote the view that an individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society who is equally deserving of concern, respect and consideration. Does the differential treatment amount to discrimination because it makes distinctions that are offensive to human dignity?
In Law v. Canada (Minister of Employment and Immigration)[9] the Supreme Court of Canada applied these three inquiries to conclude that even though the claimant was not entitled to a survivor’s pension when her spouse died simply because of her age (she was 30), it was not discrimination under s. 15 of the Charter. Under the pension scheme, full benefits were paid to surviving spouses over the age of 45, partial benefits were paid to those between 35 and 45 and no benefits were available to surviving spouses under age 35. The Court found that persons under age 45 have not historically been subjected to discrimination and that younger persons do not face the same barriers to long-term labour force participation that the benefit was designed to address. The law did not stereotype, exclude, devalue or demean adults of the claimant’s age.
4.2 Age 65 benefits, special programs and special interest organizations
In certain circumstances, the Code permits programs and benefits aimed at a specific age group.
The Code expressly provides for the preference of persons over 65 years of age:
15. A right under Part I to non-discrimination because of age is not infringed where an age of sixty-five years or over is a requirement, qualification or consideration for preferential treatment.
This permits seniors’ discounts, seniors-only housing and other benefits aimed only at persons over 65.
As well, section 14 of the Code permits the use of special programs in all social areas. This allows preferential treatment or programs aimed only at older persons, even if they have not yet reached the age of 65, if the purpose of the program is to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve equal opportunity.
It is important that special programs be designed so that restrictions within the program, for example with regard to the age of those eligible to participate, are rationally connected to the objective of the program. A failure to do so, can lead to successful challenge of the program and a finding that it is discriminatory.[10]
The OHRC’s Guidelines on Special Programs provide detailed information on how a special program can be planned, implemented and monitored.[11]
Section 18 of the Code allows certain types of organizations to limit participation or membership based on Code grounds including age:
18. The rights under Part I to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.
Example: A charitable organization that is primarily engaged in serving the interests of women over the age of 55 through researching issues of interest to this group and lobbying government to make changes to law and policy limits its membership to persons similarly identified.
An organization that wishes to rely on this defence must show it meets all of the requirements of this section.
4.3 When are standards, factors, requirements or rules that discriminate on the basis of age justifiable?
A person who wishes to assert a human rights claim (a “claimant” or “applicant”) has the burden of making out a prima facie case of discrimination. After that, the legal burden shifts to the party complained about (often known as the “respondent”) to justify that its action is reasonable and bona fide in the circumstances (rules that can be justified as bona fide are often referred to as bona fide requirements or BFRs.).
Section 11 of the Code allows a respondent to justify a standard, factor, requirement or rule that has an adverse effect because of age by showing that it is a BFR. For example, a requirement that job applicants be “recent graduates” of a program may have the effect of excluding older candidates who are less likely to have completed their studies recently. However, the employer has the opportunity to show a justifiable reason for this requirement.
Section 24 allows direct discrimination in employment for reasons of age if the age of the applicant is a BFR because of the nature of the employment. For example, if an employer has a policy of hiring persons under a certain age only, it can attempt to show that this is reasonable in the circumstances.
Whether the discrimination is direct or by adverse effect, the Supreme Court of Canada has set out the same three-step test for determining whether discriminatory standard, factor, requirement or rule can be justified as a BFR. The respondent must establish on a balance of probabilities that the standard, factor, requirement or rule
- was adopted for a purpose or goal that is rationally connected to the function being performed
- was adopted in good faith, in the belief that it is necessary for the fulfilment of the purpose or goal
- is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.
The ultimate issue is whether the person who seeks to justify the discriminatory standard, factor, requirement or rule has shown that accommodation has been incorporated into the standard up to the point of undue hardship.
In this analysis, the procedure used to assess and achieve accommodation is as important as the substantive content of accommodation. The following non-exhaustive factors should be considered in the course of the analysis:
- whether the person responsible for accommodation investigated alternative approaches that do not have a discriminatory effect
- reasons why viable alternatives were not implemented
- ability to have differing standards that reflect group or individual differences and capabilities
- whether persons responsible for accommodation can meet their legitimate objectives in a less discriminatory manner
- whether the standard is properly designed to ensure the desired qualification is met without placing undue burden on those to whom it applies
- whether other parties who are obliged to assist in the search for accommodation have fulfilled their roles.
4.4 Combating “ageism” through inclusive design
The OHRC has defined “ageism” to mean, in part, “a tendency to structure society based on an assumption that everyone is young, thereby failing to respond appropriately to the real needs of older persons.”[12] Ageism occurs when planning and design choices do not reflect the circumstances of all age groups to the greatest extent possible.
The Supreme Court of Canada has recently made it clear that society must be designed to be inclusive of all persons. It is no longer acceptable to structure systems in a way that assumes that everyone is young and then to try to accommodate those who do not fit this assumption. Rather, the age diversity that exists in society should be reflected in the design stages so that physical, attitudinal and systemic barriers are not created.[13]
As a corollary to the notion that barriers should be prevented at the design stage through inclusive design, where systems and structures already exist, organizations should be aware of the possibility of systemic barriers and actively seek to identify and remove them.
4.5 Individualization vs. assumption
Another emerging human rights principle that has particular significance for age discrimination is the notion of individualized assessment and accommodation.
In the past, many standards, factors, requirements and qualifications that discriminate on the basis of age have been justified on the basis of presumed characteristics associated with aging.
Example: Mandatory retirement of police officers and firefighters at age 60 has been accepted where an employer has provided evidence of cardiovascular disease and decline of aerobic capacity associated with aging and has shown that individualized testing is “impractical”.[14]
However, in light of recent decisions from the Supreme Court of Canada, the Ontario Court of Appeal and the British Columbia Court of Appeal it does not appear that this type of approach is sufficient.[15] Rather, those seeking to justify age-based policies must show that individualized assessment as a form of accommodation is impossible, i.e. there is no method to do so or that it represents an undue hardship.
The onus is on those seeking to justify a discriminatory standard to show they have provided individualized assessment and accommodation that recognizes the ‘unique capabilities’ of every individual, unless to do so would cause undue hardship. Specifically, rather than judging individuals against presumed group characteristics, individualized assessment or testing to determine whether a person has the necessary aptitude or qualifications should be used, subject to the undue hardship standard.[16]
[8] In Broadley v. Steel Co. of Canada Inc. (1991), 15 C.H.R.R. D/408 (Ont. Bd. Inq.) [hereinafter “Broadley”], a provision in a collective agreement that granted employees with 25 years of service extended vacation benefits beginning at age 61 was challenged on the basis that it discriminated against employees under age 61. The Board found that this benefit was a special program designed to alleviate the difficulty older workers often experience in the transition from full employment to full retirement. The tribunal used a very broad definition of hardship: hardship covers a range of problems stretching from something “more than mere inconvenience” through “adversity, suffering, or humiliation” to “extreme privation or difficulty” (at D/411). However, this case was decided prior to the Law decision, infra, note 9. Today, a similar scheme could be dealt with by considering whether it discriminates by making distinctions which are offensive to human dignity.
[9] Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 [hereinafter “Law”].
[10] Ontario (Human Rights Commission) v. Ontario (Ministry of Health) (1989), 10 C.H.R.R. D/6353 (Ont. Bd. Inq.), affd 14 C.H.R.R. D/1 (Ont. Div. Ct.), revd (1994), 21 C.H.R.R. D/259 (C.A.) [hereinafter “Roberts”].
[11] The OHRC’s Guidelines on Special Programs are currently being revised. For further updates on the status of the Guidelines please consult the OHRC’s website at www.ohrc.on.ca .
[12] Time for Action, supra, note 7 at 13.
[13] In British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 [hereinafter “Meiorin”], the Supreme Court said:
Employers designing workplace standards owe an obligation to be aware of both the differences between individuals, and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible. [at 38]
And in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 [hereinafter “Grismer”] this principle was extended to all social areas covered by human rights legislation:
Employers and others governed by human rights legislation are now required in all cases to accommodate the characteristics of affected groups within their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. 2 [at 880]
[14] Large v. Stratford (City), [1995] 3 S.C.R. 733.
[15] See Meiorin, supra, note 14 Grismer, supra, note 14, Entrop v. Imperial Oil Limited (2000), 37 C.H.R.R. D/481 (Ont. C.A.) and most recently Greater Vancouver Regional District Employees’ Union v. Greater Vancouver Regional District, [2001] B.C.C.A. 435, a case dealing with mandatory retirement at age 65 in the public sector.
[16] Grismer, supra, note 14 at 880.