Understanding the Human Rights Code: Discrimination Based on Age
What is Age Discrimination?
Age is a protected ground under the Ontario Human Rights Code (OHRC), aimed at preventing unfair treatment of individuals based on their age. The Human Rights Tribunal of Ontario (HRTO)recognizes that age discrimination can occur at both ends of the spectrum—young employees may face stereotypes about inexperience, while older workers may confront bias suggesting they are out of touch or less capable.
How Does the HRTO Approach Age Claims? The HRTO looks closely at the context in which the alleged discrimination occurred. Key considerations include:
Employment Decisions: Is age being used as a deciding factor in hiring, promotion, or terminations?
Workplace Policies: Do policies disproportionately disadvantage employees of certain age groups?
Harassment or Stereotypes: Are comments or behaviours creating a poisoned work environment for younger or older workers?
While Ontario has abolished mandatory retirement for most jobs, challenges remain. For example, older workers may be pushed out through less overt means, such as denial of training opportunities or systematic exclusion from critical projects.
A Feminist and Trauma-Informed Perspective
A feminist and trauma-informed approach to age discrimination emphasizes the systemic pressures placed on women at various stages of life. Young women entering leadership roles may face more scrutiny than their male peers, with assumptions about their competency or commitment. Older women, particularly those in senior leadership or executive positions, often encounter ageist attitudes coupled with sexism, creating double barriers.
This dynamic is compounded by what the Supreme Court of Canada described in Fraser v. Canada (Attorney General), 2020 SCC 28, as the "feminization of poverty." The case involved three women who were employed as RCMP officers in job-sharing roles. They were denied the ability to buy back full-time pension credits for the periods they spent in job-sharing arrangements, a benefit that was available to full-time employees and part-time employees alike, most of whom were men. The Supreme Court of Canada found that this rule disproportionately affected women, particularly those with caregiving responsibilities. The majority decision emphasized that policies appearing neutral on their face can have a significant discriminatory impact. By denying these women full pension credits, the system perpetuated a cycle where elderly women, more often than men, faced financial insecurity in retirement. This underscores the need for courts and policymakers to consider the real-life impact of seemingly neutral policies on women’s equality rights, as protected under section 15 of the Charter. The Court’s analysis in Fraser emphasized how policies that appear neutral can disproportionately harm women, reinforcing the need for gender-sensitive, trauma-informed approaches to addressing both age and gender-based discrimination.
A trauma-informed lens also considers how historical disadvantages compound over time. Older women in racialized or equity-seeking groups often have fewer supports or resources to challenge age discrimination, making it vital to address these cases with empathy and an understanding of intersectional barriers.
Practical Guidance for Employers and Leadership
Executives and HR professionals can lead the charge against age discrimination by:
Implementing Inclusive Policies: Review recruitment, promotion, and training policies to ensure they do not disadvantage certain age groups.
Challenging Stereotypes: Foster a workplace culture that values contributions from employees of all ages.
Offering Mentorship Programs: Create opportunities for knowledge-sharing between younger and older employees, emphasizing collaboration over competition.
Providing Ongoing Education: Conduct training on unconscious bias related to age, equipping leaders to recognize and address ageism effectively.
Case Law and Resources
For further guidance, the Ontario Human Rights Commission (OHRC) provides detailed information on age-related protections OHRC Age Policy. Additionally, LEAF (Women’s Legal Education and Action Fund) has explored the intersection of age and gender in several reports and legal interventions, offering valuable insights for senior leadership and equity-seeking groups.
Final Thoughts
Age discrimination under the Human Rights Code remains a pressing issue, especially for women executives and those in equity-seeking groups. By actively confronting ageist policies and attitudes, organizations can create a more inclusive environment where employees thrive at every stage of their careers.
Stay tuned for our next discussion on another protected ground under the Human Rights Code!