Canada, US Fight Ageism in the Workplace

By Catherine Skrzypinski September 26, 2022

​Canadian and U.S. residents currently work side by side with colleagues from five different generations. As the COVID-19 pandemic reshaped the workplace, experts say older workers in both countries have been denied new career opportunities and access to job training.

"Ageism is prevalent in every aspect of the employment lifecycle—from recruiting to termination," said Frank Cania, SHRM-SCP, founder and president of HR Compliance Experts LLC in Pittsford, N.Y.

Around 93 percent of older employees say they have seen or experienced age discrimination in the workplace, according to a 2022 survey by AARP.

"We need older workers to stay in the workforce longer," said Laura Tamblyn Watts, founder and CEO of CanAge, Canada's national seniors advocacy organization, in Toronto. "Older workers stabilize teams, and they have strong skills working with all generations."

Age Discrimination Protection

Tamblyn Watts noted that U.S. companies are pushing forward faster with age discrimination protections, whereas in Canada, the federal government is taking the lead while companies are lagging behind.  

The Canada Labor Code eliminated mandatory retirement in federally regulated workplaces in 2012, explained Ellie Berger, associate professor of sociology and anthropology at Nipissing University in North Bay, Ontario.

Age discrimination cases at most of Canada's private companies are handled at the provincial level, Berger noted.

Employees over 18 years old in Manitoba, Ontario and Saskatchewan are protected from age discrimination, Berger stated. Alberta, Northwest Territories, Nunavut, Prince Edward Island and Yukon have no mandatory retirement age.

Employees in British Columbia are protected against discrimination in the workplace starting at 19 years old, stated Cissy Pau, principal consultant at Clear HR Consulting in Vancouver, British Columbia.

According to the Ontario Human Rights Commission, employers cannot refuse to hire, train or promote people based on age or unfairly target older workers when downsizing or reorganizing.

If employees experience discrimination based on age, they can report it by filing a complaint with the Human Rights Tribunal of Ontario.

After hiring, an employer in B.C. might legitimately need to know the employee's age for a purpose like enrollment in a pension or benefits plan, according to the British Columbia government.

For employees to make an age discrimination complaint under the British Columbia Human Rights Code, there should be a connection between the way they have been treated and their age, the British Columbia government stated. Individuals must file a complaint within six months of the event.

Older workers in Canada filing age discrimination complaints may have to wait years for a resolution, Tamblyn Watts noted. Nonetheless, they could possibly get their jobs back.

Employees may also receive monetary damages from their employers for injury to dignity, feelings and self-respect, said Evaleen Hellinga, an attorney with SpringLaw in Toronto.

"Awards are fairly unpredictable in Canada and can range anywhere from $500 to $50,000 [CAD]," or approximately $381.90 USD to $38,190 USD, she added. "They will not be the large settlements seen in the United States."

Mandatory Retirement Generally Prohibited in Canada

Canada's human rights legislation prohibits mandatory retirement, Hellinga noted.

In general, "an employer cannot force someone to retire at age 65," Pau emphasized.

But there are a few exceptions, Berger explained. Some jurisdictions in Canada still allow employers to use mandatory retirement if it is part of a company's retirement or pension plan.

An employer in Canada may also justify mandatory retirement if it can establish age as a "bona fide occupational requirement" by saying that mandatory retirement is necessary for job performance, Hellinga noted. These exceptions relate to positions involving physical aptitude and safety concerns, such as firefighters and police officers.

Unions in Canada still support mandatory retirement, Tamblyn Watts said.

US Rules

In the United States, employees over 40 are protected from age discrimination under the Age Discrimination in Employment Act, Cania stated.

Many older adults find that they are faced with only two employment options, full-time work or retirement, when they want options somewhere in the middle. Organizations that have offered alternative work arrangements, including job sharing, phased retirement, flexible scheduling and remote work, have found these options attractive not just for older adults but also for many other employees seeking greater flexibility.

[See SHRM members-only toolkit: Employing Older Workers]

The United States also can employ a bona fide occupational requirement regarding age, Cania noted. In addition, an employee in a bona fide executive or high policymaking position—such as a C-suite executive or a company leader—could be forced to retire.

Ageism Prevention Practices

Human resources experts recommended that employers take all allegations of ageism seriously and instill the following practices:

  • Start a conversation about ageism with an intergenerational workforce—define what ageism is and address it in the company's diversity, equity and inclusion policy.
  • Create mentor roles for older workers.
  • Train employees and management on harassment and discrimination prevention policies in the workplace.
  • Consider a voluntary retirement policy for employees to obtain benefits if they retire at a certain age.

"HR professionals should ensure they have the knowledge necessary to set the tone for ageism prevention policies, practices and training," Cania said. "HR should establish itself as a subject matter expert and become the go-to resource for executives, managers and employees."

Catherine Skrzypinski is a freelance writer based in Vancouver, British Columbia.



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