Older workers are increasingly being targeted for mistreatment in the workplace; perhaps surprisingly, there is a lot you can do about it.
Age discrimination in the workplace can occur in a variety of ways, including:
- Being selected for termination because, in whole or in part, of your age.
- It is written in your employment contract that you must retire at age 65.
- Being told or encouraged by the leadership staff to retire because someone else thinks you are too old to do your job.
- When you start to approach sixty years of age, your leadership team and coworkers constantly ask “when you are going to retire?” as a means of forcing you out the door.
- Sometimes it’s more subtle, like becoming the brunt of workplace jokes, or teasing focused on your age to pressure you to retire.
- For others, perhaps you are the oldest worker left in your workplace, the last one standing, which makes you wonder if they get rid of the older workers once they reach a certain age.
Age discrimination is an ugly reality for many older employees and executives.
However, the good news is that older workers have rights, and in terms of employment rights, they have lots of them.
Based on the common law and statute-based legal requirements, being an older worker has never been better in Ontario than right now.
Younger workers are often told, “you must put in your dues” before they see the real rewards (and usually more compensation). When you have been employed long enough and have put in your time, that is when you start to earn significantly more compensation. So, after putting in your time (and taking less money along the way) and for some, after beginning to get what you deserve financially, employers pressure you to retire when you don’t want to leave. This is an all too familiar story.
Retiring is Quitting
Make no mistake; when you retire, you are legally quitting.
Retiring or telling your employer that you are retiring amounts to quitting.
As a rule, and all things being equal, NEVER QUIT. Quitting may result in your opportunity to get paid a proper severance package going up in smoke.
If I quit, what are my legal rights?
You have few legal rights if you quit (unless you assert that you were constructively dismissed) – you will not be entitled to common law notice and will not be entitled to your statutory entitlements to termination and severance pay under the Employment Standards Act, 2000 (ESA). You will not be entitled to Employment Insurance benefits either.
And it gets worse for departing older workers.
Now that they have let you go, good luck with getting another comparable job.
Older workers face more difficulty securing reasonable alternative employment
The Supreme Court of Canada (SCC) has said that older workers, defined as anyone over 45 years of age, will have a more difficult time securing reasonable alternative employment, all things being equal. In terms of getting hired again, the older you are, the harder it is to find replacement employment, let alone at your earning level and stature.
Anyone older than 60 has almost no chance of finding reasonable alternative employment unless you are one of the few with specialized or highly sought-after skills or experience.
An employment lawyer can help you maximize your financial compensation
If your employer wants to sever you from employment or is pressuring you to quit, this is when you must do everything you can to maximize your financial compensation and recognize the reality that you may never get hired ever again. This is when you need expert legal advice from an employment lawyer who represents employees and executives, like Evans Law Firm and John R. Evans.
We can help and always offer free consultations.
Older Workers are Entitled to More Notice (and more compensation)
While quitting is rarely a good thing to do, sometimes an employer will terminate you without cause, which they have the right to do, as long as it is not for discriminatory reasons.
While your employer has the right to terminate you, you have the right to sue in the courts for notice. Typically, you sue because your employer did not you enough advance notice that your job was coming to an end.
How much notice are older workers entitled to receive?
In determining how much notice an executive or employee is entitled to receive, the courts look to various factors, and each case is decided based on its unique facts.
The usual factors considered by the courts are:
- position or title
- length of service
- availability of reasonable alternative employment comparable to the position held previously
In determining how much notice older employees should receive; the courts typically award notice at the higher end of the spectrum.
Older workers have usually amassed significant service as well, another factor that favours a longer notice period.
Sometimes older workers have “extraordinary facts’ which usually involve a combination of significant length of service and age. I once had a case where my client had 44 years of service and was 78 years of age – he got three years’ notice.
Furthermore, older workers have a much harder time finding employment, to the extent they ever find employment again.
How can an employment lawyer help?
This is where a skillful lawyer can be a game changer for you. The courts and Judges like to make decisions that are grounded first on the relevant employment facts and then any other evidence properly put before the courts. No Judge likes to get overturned; the more bulletproof they can make their decisions, the better. The appeal courts don’t like to interfere with findings of fact, therefore, gathering and presenting all facts is key to your success.
Evans Law Firm works with specialized experts to secure reports and opinions. These reports and opinions are then served and filed in court to justify longer notice periods for our clients and more compensation. Retaining experts to provide detailed opinions in their recognized area of expertise and justifying why someone should get more notice is a great investment.
Age Discrimination in Employment is a Violation of the Human Rights Code
Several key points legally should be kept in mind regarding age discrimination:
In the context of your employment, it is a violation of your rights under the Human Rights Code (“the Code”) to discriminate against someone because of age. Section 5(1) of the Code provides:
“Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.”
The definition of age in section 10 provides:
“age means an age that is 18 years or more”
We talk about upper limits and lower limits in the context of the definition of age under the Code. The lower limit is 18. As such, it is not unlawful to discriminate against someone under the Code if they are younger than 18 years of age.
The Code previously had an upper limit set at 65. The legislature removed this upper limit of 65 years of age approximately 15 years ago.
This removal of the upper limit to the definition of “age” is very significant and helpful to older workers.
Older workers cannot be discriminated against as an employee due to age
People are living longer, people want to work longer, and no one should be forced out of the workforce and prevented from working because they reach a certain age.
Older workers now enjoy the right to continue working well into their later years.
The law tells us that older workers cannot be discriminated against as an employee due to age – whether you are 70, 75, 80, or 100, you cannot, by law, be discriminated against because of your age.
In dealing with discrimination cases and your rights under the Code, you do not have to prove that age discrimination was the only reason for your dismissal. It doesn’t have to be the key factor or major factor to violate the Code, all you have to prove is that it was one factor used in deciding to sever your employment.
Another interesting consideration in human rights cases is the recognition that the Judge or decision maker should be prepared to draw the necessary inferences from the surrounding facts and circumstances-as there is rarely a smoking gun to prove the employer’s improper motivation based on discrimination.
All this to say, don’t worry if you think that you can’t prove you were discriminated against. This is exactly what experienced employment counsel do and can help you with. They are skilled at gathering the facts and presenting them in the most favourably light-and cross-examining employer representatives as to their real motivations for a particular decision. They can also provide proactive advice and help to ensure that your position is made clear to the Employer while at the same time not disclosing that they are assisting you behind the scenes.
What If There Is a Term of Your Employment Contract That You Must Retire at 65 or 70?
Firstly, you need to know that such a provision, if it exists in your contract, on its face, is unlawful and violates the Code.
The Code is a quasi-constitutional statute. The Code is considered by all courts in Canada to be unique legislation, considered more significant than other statutes but not quite as significant as our constitution, The Canadian Charter of Rights and Freedoms. The Code has a special status and is regarded as an extremely important and powerful part of our legal system.
The Code’s special status means you cannot contract out of its scope or application. As such, any term mandating retirement at a specific age for employees and executives is illegal.
What should I do about it?
When it comes to claims involving older workers, Evans Law Firm knows what facts are important and add to the factual record using experts to ensure that all older workers receive the fair and just compensation they deserve.
When you need an employment lawyer, before or after you are terminated, one that can fight for your rights and protect you, one that specializes in representing only employees and executives-email, call or message Evans Law Firm and John R. Evans. We can help and always offer no-charge consultations to review your situation and provide you with our best assessment of your case, whether it’s worth proceeding, and what you could reasonably expect to be awarded in court at the end of the day. We offer several different ways to retain our services and we offer contingency arrangements in certain cases.