Can you be canned for doing what comes naturally? Like getting older?
You own a printing company. Many of your employees are getting a little “long in the tooth.” They’re also expensive—at least compared to the latest crop of Gen Z staffers, who’ll work for unvested stock options and the occasional pat on the head. You want to launch a company-wide cull, and run your boomers and their classic-rock playlists off the nearest cliff. Can you?
When it comes to public relations missteps, few in recent Canadian memory compare to the brouhaha surrounding the departure of journalist Lisa LaFlamme from her gig as anchor of CTV National News, the network’s flagship news program. While Bell Media, CTV’s parent company, insisted (and continues to insist) that letting LaFlamme go was a financial decision, some suggested other motives. Like, for example, LaFlamme’s decision to stop dying her hair, thereby revealing that the middle-aged reporter could, in fact, resemble the 58-year-old woman she most assuredly is.
At this point we have no indication of what role, if any, age might have played in LaFlamme’s sudden removal. (Nor do we know what was in her contract.) But it’s a wake-up call for those of a certain vintage: Can you be canned for doing what comes naturally? Like getting older?
Not so fast, says Dana Quantz, an employment lawyer with Hutchison Oss-Cech Marlatt in Victoria. Along with traits such as race, religion and disability, age is considered a protected characteristic under Canadian and British Columbian human rights legislation. “If the employee lost their job in part due to their age,” notes Quantz, “then the employer is going to be liable.”
Excellent. So, case closed then? Not likely. For an unfairly fired older worker, the good news is that they only have to prove that age was a factor—not the dominant factor. Still, says Quantz, things can get tricky: “Age, race and religion—these kind of protected characteristics are more challenging than cases such as disability,” which, he notes, represents the overwhelming proportion of discrimination claims filed. The reason? “It’s easier to prove,” says Quantz. “If you go on leave, or say, ‘I have a mental health condition,’ and the employer decides, ‘Oh, we’re going to do something about that’—and you lose your job—it’s easier to make the inference.”
So, in age discrimination cases, it basically comes down to divining the company’s intent, yes? Well, no. “Section 2 of the [B.C. Human Rights] Code says that intent is irrelevant,” says Quantz. The reason isn’t too hard to understand. “You’ll often see cases under the Human Rights Code where the employer will respond by saying, ‘Well, we didn’t intend to discriminate,’” he explains. By relieving a complainant of having to actually prove intent— which can be a pretty high bar—it cuts that argument off at its knees.
That said, intent can play a role, in a way. Instead, it can be inferred through demonstrable behaviour or patterns of behaviour. For example, if the company has a history of similar actions, or if they replace a capable senior employee with a younger (less expensive) worker, this could very well factor into a judgment.
Often, employers disguise age-based discrimination by claiming that the terminations are simply part of a restructuring effort. And, yes, restructuring to create a more profitable environment is clearly allowed. But if after a reorganization the “terminated” position still exists but has been filled by some- one younger, that might not fly.
Again, the employee doesn’t have to prove that age discrimination was the factor—it being a factor could still put the employer on the hook for penalties, which typically range from $10,000 to $20,000 just for hurt feelings and injury to dignity and self-respect. (In certain situations, awards of $100,000 and over have been bestowed.) Factor in compensation for lost wages and related expenses, and this could be a very expensive “restructuring.”
Bottom line? If you’re considering canning members of your aging work force, you’d best tread carefully. Because you know what never really gets old? Justice.
Fictional scenario. Not intended as legal advice.