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The older job applicant: Human Rights considerations

older-job-applicantThe number of workers over the age of 65 has significantly increased in recent years, and a survey by Towers Watson found that one-third of all respondents and 42 percent of older workers have decided to delay retirement. This aging workforce demographic means that not only are there more older workers remaining in their employment, but also that there are many older workers seeking new employment. This includes both older workers who have never left the workforce, and those who have retired. Statistics Canada found that more than half of workers aged 55 and older who left their careers from 1994 to 2000 returned to the workforce within a decade.

The authorities generally accept that age-related discrimination can increase the difficulties that older workers face in securing new employment. This discrimination is evident in cases before human rights tribunals across Canada. Last year, I wrote a post on a consultant’s liability for age discrimination against a job applicant.  Another case from the Ontario Human Rights Commission again serves as a caution that all persons engaged in the hiring of employees must be careful not to discriminate against an applicant on the basis of age. In Kosovic v Niagara Caregivers and Personnel Ltd., 2013 HRTO 433, a sixty year old man applied for a job as a full-time, live-in caregiver. During an interview conducted by a recruiting agency, he filled out an application form which required him to disclose his date of birth. The recruiting agency did not refer Kosovic for consideration by the employer and he filed a human rights complaint against the agency alleging discrimination in employment based on age.

The Commission held that the agency’s failure to refer him to an employer for consideration was not discriminatory because Kosovic had not completed his application. However, the Commission went on to hold that asking Kosovic for his date of birth on the application form was discrimination on the basis of age. The Commission awarded him $500 in damages for injury to his dignity, feelings and self-respect.

This case serves as a good reminder that asking for a job applicant’s date of birth can trigger human rights liability even when the applicant’s age plays no role in the decision not to hire them. Employers would be well advised to carefully review their application forms (and those used by any recruiting agencies that they engage) to ensure that they do not contain any discriminatory questions.

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Alison J. Bird

Employment Lawyer at Cox & Palmer
Alison Bird is a lawyer practicing in Halifax with the Atlantic regional law firm, Cox & Palmer. Alison is growing her practice in the areas of labour & employment law and litigation. Alison is a frequent presenter on employment law topics and recently presented on the challenges being faced by employers dealing with changing demographics in the workplace. Read more
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