Individuals at both ends of the age spectrum are potential victims of discrimination as a result of negative stereotyping about the young and the old. Making blanket assumptions about the ability of individuals because of their age runs counter to human rights principles. It is also poor business sense to eliminate experienced and otherwise qualified candidates from consideration simply because they have reached a certain age, or to refuse to consider someone because they are below a certain age.

Attitudes towards Older Workers

This year, two research studies funded by Human Resources Development Canada provided some unsettling information about employers' attitudes towards older workers. In the first, the Department's employment counsellors were surveyed about the employment needs of older workers and barriers to meeting those needs. The report, Options 45+: Human Resource Career Centres Survey, by Underhill, Marshall and Deliencourt was released in April. The overwhelming majority (84 per cent) of counsellors surveyed felt that employers discriminate against older workers in their hiring practices. Perhaps unsurprisingly, the counsellors indicated that individuals 60 and older have the most difficulty being hired, followed by individuals between 45 and 59 years of age.

The second study examined employers' attitudes towards older workers and workplace policies. The report, Options 45+: A Survey of Canadian Employers, found that approximately three of every 10 employers who responded to the survey had an age beyond which they would consider a person too old to hire. For small firms this was 57, for larger ones 59, with variations according to region and industry. This research and other studies bear out the persistence of negative attitudes towards older workers.

Discrimination in Employment

The Commission's experience with age discrimination cases confirm that prejudice remains a factor. The majority of complaints on this ground received by the Commission during the year involved older individuals who have experienced unfounded stereotyping about their abilities. For example, a 60-year-old man applied unsuccessfully for one of a number of engineering positions with an airline company. Investigation revealed that the respondent had hired applicants who were younger than the complainant, even though the latter was equally qualified.

A further problem confronting older workers is loss of jobs when an organization downsizes or restructures. For example, the Commission this year settled a case involving a bank teller, the oldest employee at the branch at the time of her dismissal. After her departure, the bank hired younger employees to perform duties similar to those she had been performing.

In 1997, a human rights tribunal released its decision in Cranston et al v. Canadian Armed Forces, another case involving loss of employment after restructuring. The case concerned a group of 26 pilots and flight attendants who were forced to take early retirement or were reassigned to non-flying positions when the government's Executive Flight Service operation was transferred from the Department of Transport to the Department of National Defence. The tribunal ruled that the complainants were victims of age discrimination. It observed that, "It is difficult to imagine [that] individuals would be told that they were not acceptable to an organization because of their gender, religion, race or sexual orientation." However, added the tribunal, the complainants "were told they were not acceptable to the CAF because they were too old." As the Chief Commissioner observed at the time of the decision, "the tribunal has made it clear that an employer cannot reorganize people out of a job because of their age."

Mandatory Retirement

Another form of age discrimination is the requirement of some organizations that all employees retire at a predetermined age, regardless of their wishes and their ability to continue to perform their duties. One organization that retains such a requirement is the Canadian Forces. Between 1986 and 1988, a group of complaints was filed with the Canadian Human Rights Commission by members of the Canadian Forces alleging that they had been deprived of employment opportunities on the basis of age (Martin et al v. Canadian Armed Forces). Nine had been forced to retire, and the tenth had been told that he would have to retire at age 40, although his term was later extended. In March 1997, the Federal Court of Appeal ruled that the mandatory retirement policy was discriminatory, concluding that individual testing was a reasonable alternative that could be used to identify those members of the Canadian Forces who were no longer fit to serve. As a result of the Court's decision, each of the nine complainants will receive compensation for lost wages ranging from approximately $5,000 to $200,000.

The Commission favours repeal of the provision of the Canadian Human Rights Act which permits mandatory retirement at the "normal age of retirement for employees working in positions similar to the position of that individual." Older workers, especially those with low wages and no pension plan, need jobs as much as younger workers. Indeed, if they have experienced long periods of unemployment they may well be unable to afford to retire. Mandatory retirement also has a negative effect on women, many of whom are unable to earn sufficient pension credits, either because they entered the workforce later or left it for a number of years to care for their children. We believe that competence - not age - should be the only consideration in determining whether a worker should be forced to leave a particular position.

Complaints

In 1997, the Commission completed work on 424 complaints of age discrimination. Six cases were resolved or settled. Thirteen were referred to alternative redress mechanisms, such as a grievance procedure or an employer's internal complaints procedure. Three cases were referred to the Canadian Human Rights Tribunal for a hearing.

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