Adverse Effect Discrimination

Prohibitions in human rights codes throughout the country against discriminating on the basis of an employee’s age basically mean that no employee should be selected from among others for a disadvantage even in part because of their age. They do not mean that employers have to worry about the effect of routine business decisions on older workers.
 
By 1999, John had been working for a bank for 28 years. He was told that his position was being eliminated and that his employment would soon be over. John managed to find temporary positions for the next two and a half years but by the spring of 2002, it was finally over. John had come to the bank with a high school education and when he got that first notice in 1999, he was 48 years old. He was in a senior position in head office. By the time John was finished he was 51 and had been with the bank for over 30 years.
 
Under the bank’s pension plan, if John had been terminated after his 53rd birthday, he would have received a bridging payment to age 55 and would have received the full pension to which 55 year olds with his years of service were entitled. A lot of money was at stake.
 
When this matter eventually received a hearing from the Canadian Human Rights Tribunal, there was no issue as to whether John was selected for termination because of his age. He was only 48 at the time and there was no evidence that his age had anything to do with the decision. His position had been eliminated and no one was being hired or transferred to fill his shoes.
 
During his two and a half years of temporary jobs, he had applied for a full time position with the bank but was unsuccessful. John claimed that the decision not to give him that full time position related to his age but there was no evidence to support that allegation.
 
When John eventually left the bank, it was not because there were not other temporary positions available but because the bank had a policy of not allowing these temporary positions to go on too long.
 
John argued that the reason they wouldn’t let him keep on being a temporary employee was because he was a senior and expensive employee and of course, he had managed to become senior by growing older.
 
John argued that before denying him another temporary position which would have got him to his 53rd birthday, the bank should have considered his age and the adverse effect their decision would have on him in particular. He was loosing a big pension bump up.
 
At its core, what John was saying was that given how close he was to his 53rd birthday and all those increased pension entitlements, the bank should have given him special consideration because of his age.
 
John lost before the Canadian Human Rights Tribunal and appealed to a Federal Court judge. Unfortunately for John, he lost again.
 
John’s lawyer argued that this was what is called  “adverse effect discrimination”. If an employer has policies that tend to have a negative effect on a particular class of people like older workers or women, even though it may not have intended to have that result, it is still discrimination.
 
The problem in John’s case was that there was no “policy” at play. John’s initial position really was eliminated and that was not the result of any broad policy.
 
Nothing in the law requires employers, in considering terminations designated by business conditions, to give special consideration to the individual circumstances of the employees affected.
 
Put simply, if you happen to be unlucky enough to be in a position that has become redundant, you should not be safe from the consequences just because of your age, race, colour, creed, gender etc..
 
It was a bad piece of luck that John did not get to his 53rd birthday but it was not discrimination.
 
Although one can’t help but feel bad for John who gave almost 3 decades of his life to the bank and missed out on the pension bump up, this was the right decision. Think about what it would have meant if John had won.
 
If employers had to give preference to older workers and spare them routine terminations, the demographics of every workplace could change dramatically. When business is bad, the younger workers get terminated because preference is being given to save the older workers even if they were in the position that should have got the axe. There is no mandatory retirement anymore so it would arguably be the younger workers that were now suffering the discrimination. Regardless of what job they are in, they get the axe first because of their youth and low seniority.
 
Think also about what it would mean to employers who are looking for new workers. It is hard enough for older employees to find new employment, how much harder would it be if employers thought once they hired an older worker they would be harder to terminate than other employees because of their age?
 
As published in the Hamilton Spectator, June 7, 2008
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com