**************** Shades of Grey: Law and Aging in the Contemporary Workplace Conference

1. “Age is Different”: Revisiting the Contemporary Understanding of Age Discrimination in the Employment SettingPnina Alon-Shenker, Ryerson University **************** Shades of Grey: Law and Aging in the Contemporary Workplace Conference Toronto, April 2012

2. Overview • The contemporary understanding of age discrimination in the workplace is limited and raises several difficulties. • Review of recent decisions: • ONA v. Municipality of Chatham-Kent; • Decision No. 512/06 of the WSIAT; • Law v. Thames Valley District School Board; • IBEW v. Black & McDonald Ltd. • Age discrimination is narrowly defined and focuses on: • direct discrimination; • comparing the young and the old; • stereotypical or prejudicial elements. • Age discrimination is considered less harmful than other forms of discrimination. Consequently, the right to age equality is often trumped by other interests and considerations. • However, age discrimination should be understood in broader terms and be viewed, at least in some contexts, as very significant.

3. Is Age Discrimination Less Critical? • While “age-based distinctions are a common and necessary way of ordering our society”, age discrimination against senior workers is as severe and critical as any other form of discrimination: • Age discrimination is widespread especially in the employment setting. • Some age-based distinctions, especially in the context of senior workers, could be significantly pernicious and wrong.

4. What is Different about Age? What are the Implications? • The unique features of age discrimination might suggest that a new, distinct theory of age discrimination should be developed. • But they should not imply that age discrimination – at least not where senior workers are concerned – is less critical or significant than other forms of discrimination. • Although age is constantly changing, it is immutable. • Although the discriminator could be a senior person or a younger person who will be senior in the future, this does not negate feelings of hostility and intolerance towards senior people, nor does it guarantee that senior people are treated with respect and concern.

5. When and Why Age-Based Distinctions are Wrongful? • A narrow understanding of age discrimination is problematic: • There is a tendency to view age-based distinctions as a necessary way of ordering our society. • Age discrimination is often motivated by complex feelings of reluctance and fear, rather than hatred. • Ageist stereotypes can be easily concealed. • Even when not based on stereotypes, distinctions may have detrimental impact on seniors. • Age discrimination may be associated with other wrongs such as isolation, oppression and economic deprivation. • These wrongs are so significant that they cannot be compensated for by previous benefits.

6. What are the Wrongs Associated with Age Discrimination? • The Dignified Lives Approach: A theoretical framework for identifying instances of wrongful age discrimination (forthcoming in Canadian Journal of Law and Jurisprudence). • It considers all human beings of equal moral worth, and advocates treating each individual with equal concern and respect at any given time. • Treating individuals with equal concern and respect means more than a simple comparison between their shares of resources. • It requires that each individual will be treated in a manner that respects five substantive principles of equality which stem from the idea of equal concern and respect. * The theoretical framework builds on the work of Sandra Fredman on age equality, as well as on more general work of various legal and philosophical scholars on the meaning of equality and the wrongs that are associated with discrimination, including Elizabeth S. Anderson, Harry Frankfurt, Donna Greschner, Sophia R. Moreau, John Rawls, Denise Réaume, T.M. Scanlon, and Iris Marion Young.

7. The Wrongs of Age Discrimination • The five substantive principles of equality: individual assessment, equal influence, sufficiency, social inclusion and autonomy. • Not every distinction is unlawful age discrimination. • A distinction is discriminatory when one of the principles is not respected: e.g. when the unequal treatment is based on ageist stereotypes or ageism towards senior workers; when it perpetuates oppression of senior workers; when it denies senior workers access to basic goods; when it excludes them from meaningful participation in social life; or when it reduces their autonomy. • The distinction may still be justified but only by compelling reasons. • SCC in R. v. Kapp: “[t]he focus of s. 15(1) is on preventing governments from making distinctions based on enumerated or analogous grounds that have the effect of perpetuating disadvantageor prejudice or imposing disadvantage on the basis of stereotyping”.

8. The ONA Decision • The statutory provisions, which permit employers to provide less or no benefits to employees over the age of 65, violated s. 15 of the Charter but were justified under s. 1. • Ending mandatory retirement and ensuring that it did not undermine the viability of employment benefit plans were identified as pressing and substantial objectives. • The government was “not required to prove that it has adopted the absolutely least intrusive means possible”. • The blanket exemption which provided “maximum flexibility” to employers, employees and insurers was reasonable. • The negative impact on the financial situation of the grievors and nurse retention was not sufficiently deleterious, and did not outweigh the legislation’s beneficial effects.

9. The ONA Decision • Etherington places “considerable weight” on the fact that “‘age is different’ from other prohibited grounds of discrimination”. • “Unlike other grounds, being a given age is an attribute that is expected to be shared by everyone in the majority”. • Since age-based distinctions apply to all workers as they age, they “are less likely to result in significant deleterious effects … and more likely to attempt to maximize compensation and benefits for all employees when their working life is looked at as a whole…”. • While recognizing the harm done to the two grievors, Etherington advocates giving “due consideration to … important social and economic practices and values” such as “free collective bargaining to regulate workplace terms and conditions”.

10. Applying a Broader Understanding of Age Discrimination • The impugned provisions are discriminatory (i.e. violate s. 15). • They compromise the first principle of individual assessment as they fail to take into account the personal traits and circumstances of those who continue to work past 65. • They do not respect the second principle of equal influence because they perpetuate oppression of senior workers. • They compromise the third principle of sufficiency because they limit the grievors and other senior workers’ access to basic goods which are essential to a life of dignity. • These significant wrongs cannot be compensated for by past of future benefits. • Only compelling considerations may trump the right of senior workers to age equality.

11. Conclusion • There is no justification for a blanket exemption which allows employers to discriminate against senior workers due to general economic concerns. • At the same time, employers should be allowed to use age-based distinctions in the provision of benefits, if they successfully establish on a case-by-case basis that this distinction is justified (i.e. meets a bona fide requirement). • Preferably, this should be negotiated into a collective agreement. • On the one hand, it could be that the particular solution adopted in the ONA’s collective agreement was reasonable and proportional given the costs of some of the plans. • On the other hand, ONA provided evidence that the benefit plans could have been available to senior workers at a minimal cost.