Age Discrimination in the Employment Context in British Columbia

Age Discrimination in the Employment Context in British Columbia

March 13, 2022

BY Nicole Freeman, Monika Steger, and Alison Wilkinson

Introduction

This is the second of a three-part series discussing age discrimination and older people. The first post focused on the human rights process and age discrimination generally. This post looks at age-discrimination in employment settings. The final post reviews other settings where age related discrimination occurs.

This blog post:

• Explores age discrimination in hiring, accommodation, termination, and hours reduction.
• Lists items to think about to help decide if discrimination occurred in the above listed areas.

Discriminatory Hiring

An employer cannot ask a person’s age when hiring. However, this does not change the reality that some employers make hiring decisions based on the age of candidates.

The British Columbia Human Rights Tribunal (the “Tribunal”) sets out a test to establish if discrimination occurred in a hiring process.^[1]  The three elements include:

1. the person with the human rights complaint (the “complainant”) was qualified for the particular job;
2. the complainant was not hired; and
3. a person who was equally qualified, but lacking the distinguishing feature (e.g. was younger), was hired for the position.

If the complainant can prove the above conditions, then the employer must provide an explanation for why they hired someone else which is not discriminatory.

Below are factors to consider in determining if age discrimination was present in a hiring process:

• What was the age of the person who was hired instead? For example, if the employer hired someone who was older than the complainant, it is unlikely age was a factor.^[2] This is not always the case, however.

• Are there other differences between the person who was hired and the complainant? There may be legitimate reasons why another person was selected for a job. For example, in Butler v BC Assessment, the complainant was unwilling to move, which drastically reduced her chances of being hired for a particular position.

Failure to Accommodate Aging Employees

Often, human rights complaints occur because someone was fired from a job (which is explored next). Employers must provide ‘accommodation’ to workers who are experiencing negative impacts due to a protected characteristic. Examples of protected characteristics include age, sex, disability, marital status, and sexual orientation. For example, if an employee develops arthritis, an employer may ‘accommodate’ this worker by moving them to an office position rather than operating a machine.

However, there is a limit to this, which is known as ‘undue hardship’. This means it would be extremely difficult or expensive to act in a manner that does not discriminate. The British Columbia Human Rights Code (the “Code”) does not require an employer to keep an employee who cannot perform the work even with accommodations.^[3]  

Below are some factors to consider when determining whether performance changes related to age require accommodation by an employer.

• Is the change in performance tied to aging? The performance changes must be caused by aging in order to be age discrimination. For example, if a worker breaks his or her leg, an employer still has a duty to accommodate. However, if the worker is fired because of the broken leg, this is not age discrimination because the broken leg is not caused by aging.

• What skills and abilities does the employee still possess? It is important to consider what role an employee can still play given permanent changes in ability due to aging. For example, a worker may no longer be able to do roofing, but they can do billing.

• Is the worker unable to complete the work even with accommodations? There may be some instances where a worker is unable to fill any role within the organization. As mentioned above, this may mean accommodation is not possible and termination is acceptable.

Discriminatory Termination and Hours Reduction

Age discrimination occurs when a person is fired or has his or her hours cut, at least in part, because they are a certain age. As discussed in the first post, the case of Moore v BC requires the protected grounds (e.g. age) to be a factor in the adverse treatment (e.g. getting fired). For more information, check out the first post here.

Here are some factors to consider in determining if age discrimination was at play in a worker’s termination or change of hours:

• Was the person fired for poor work performance (unrelated to aging)? For example, in Grandy v Kelowna U Weight Loss (No 2) the employer showed the complainant’s sales were poor as compared to other employees.The employer was also able to show that sales increased following the complainant’s dismissal.

• Was there a legitimate business reason for the termination or hours reduction? In Li v Options Community Services and others, the complainant argued that her hours were reduced, and she was eventually fired due to her age.The employer successfully demonstrated that her hours were cut due to funding. Further, employees of all ages were dismissed or had hours reduced.

• Was the worker replaced by someone younger? Age discrimination may be inferred where the employer fires an older employee and then hires a younger employee to do the same or similar work. For example, in Price v TopLine Roofing, the employer hired younger employees and fired the two oldest employees.

• Did the employer make comments indicating age discrimination? For example, in Hubbs v Advanced Healing Arts the employer had sent several emails to other employees that referenced the complainant’s age in a negative manner.

Conclusion

This post has explored age related discrimination in relation to employment. 

Establishing discrimination is highly contextual and fact specific. It is important to consider not only what happened, but also the motivations and factors influencing the parties. That said, discrimination is ultimately about impacts related to a protected ground. Many people act in a manner that is discriminatory without intending to do so and a complainant is not required to prove intention to discriminate.

The next post will consider discrimination in other contexts, including age discrimination in providing services and housing.  

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[1] 2002 BCHRT 33

[2] See Cotter v Sabre Industrial Supplies, 2017 BCHRT 51. 

[3] See Paulsen v BC Hydro and another, 2020 BCHRT 75.