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Canadian Human Rights Commission cautions employers on rights of aging workers

On December 15, 2011, the Keeping Canada’s Economy and Jobs Growing Act (Bill C-13) became law. This Act amended the Canadian Human Rights Act to eliminate the mandatory retirement age for federally regulated employees unless there is a bona fide occupational requirement. However, this provision only comes into force on December 15, 2012.

Recently, the Canadian Human Rights Commission received inquiries and was made aware of media commentary about employers seeking to take advantage of the transition period to force older employees to retire before they are ready to. While the commission has no evidence that this is in fact taking place, it is cautioning federally regulated employers that might be considering such action not to.

“The transition period should not be viewed as a license to force aging workers out the door,” said David Langtry, Acting Chief Commissioner of the Canadian Human Rights Commission. “Forcing someone to retire because of their age clearly contradicts Parliament’s intent, even if a defense in law still appears to be available,” he said. “The Canadian Human Rights Commission encourages employers to continue working toward an inclusive work environment while taking steps to ensure that they are able to positively respond to an aging workforce.”

What does it mean to positively respond to an aging workforce?

The aging workforce creates a challenge for employers. Baby boomers (born between 1946 and 1964) are set to retire in large numbers by the end of the decade. According to Statistics Canada and Human Resources and Skills Development Canada, boomers make up a great part of the workforce, and there aren’t enough younger workers to replace them. Labour shortages in key industries are forcing a radical rethinking of recruitment, retention, flexible work schedules and retirement.

This raises important issues about what it will take to meet critical business needs for workers, skills and knowledge in the future. The failure to investigate or recognize the issues surrounding the maturing workforce will pose a threat to future growth and productivity for many businesses.

A Statistics Canada report titled, Greying of the workforce, indicates that one of the major challenges will be eliminating outmoded attitudes about older workers’ capabilities. Age discrimination in the workplace is not uncommon. While mandatory retirement is probably the most obvious example, discrimination takes many forms:

  • Compared with those under age 45, older workers are more likely to be laid off and tend to have longer periods of unemployment
  • Training lasting more than 25 hours is considerably less common among older workers
  • Older workers tend to have lower earnings
  • Hiring practices favour younger workers

Many studies refute the myths that older workers suffer diminished capacity, are ill more frequently, are less flexible and less trainable, and are not well-motivated. On the contrary, older workers in general want to work, preferring to stay active and engaged, and they can fill temporary, seasonal, part-time and full-time positions.

However, some do not agree that, as the boomers continue working past traditional retirement age because they are healthier and live longer, there will be minimal workforce disruptions.

Nonetheless, organizations should focus on recruiting/hiring strategies and retaining workers aged 50 and older. Employers that hire or retain older workers can substantially ease the economic pressures created by an aging population. In addition, the value of older workers comes from experience and knowledge which they want to apply and share with other young workers.

So become an age-friendly workplace by ensuring your workplace policies and practices do not directly or indirectly discriminate against older workers.

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor

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Yosie Saint-Cyr

Managing Editor at First Reference Inc.
Yosie Saint-Cyr, LL.B., is a trained lawyer called to the Quebec bar in 1988 and is still a member in good standing. She practiced business, employment and labour law until 1999. For over 15 years, Yosie has been the Managing Editor of the following publications, Human Resources Advisor, Human Resources PolicyPro, HRinfodesk and Accessibility Standards PolicyPro from First Reference. Yosie is one of Canada’s best known and most respected HR authors, with an extensive background in employment and labour across the country. Read more
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