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Age Discrimination Needs Evidence

QUESTION: There is a pattern of behaviour in my company that I and other senior employees find extremely distressing.  We are in an industry where the sales cycle through no fault of our own. When things are slow, the young executive team with their Masters in Business Administration start looking for heads to role.  The pattern is that someone with twenty or more years of experience will be moved into a new job.  Soon after, they will be told that their job has been made redundant and will be given a mediocre severance package.   Is this age discrimination?
 
ANSWER: It sounds like age discrimination.  The challenge is  proving it.  There are very few managers in the working world today who are stupid enough to actually articulate out loud the fact that they are intent upon getting rid of older workers.  If you can show a consistent pattern, a case for age discrimination might be established.  The problem is you can=t bring the complaint of age discrimination.  You still have a job and have not yet suffered from any discrimination.  One of the terminated employees would have to bring a complaint within 6 months of the date of their termination to the Ontario Human Rights Commission. 
 
Even if some of those employees were terminated within the last 6 months, if they already signed a full and final release in order to get the mediocre severance package, there is nothing they can do. 
 
The best that you and the other older workers can do right now is to sit down while your memory is fresh and gather the information.  List the terminations over the last number of years and have all the details and information organized.  The next older worker to get the axe should take that information to an employment lawyer and have it reviewed to see if there is enough evidence to establish age discrimination before the worker signs any release.
 
Companies who engage in this practice cannot defend themselves by saying that their intent was to get rid of the higher paid workers, not the older ones.  If it can be shown that all the higher paid workers are the more senior workers, then the company would still be guilty of discrimination. 
 
This kind of discrimination is called adverse effect or indirect discrimination.  The employer does not set out to get rid of older people, but its policy of axing higher paid workers has a discriminatory effect upon older workers.  In these circumstances, a violation of the Ontario Human Rights Code would still have occurred.
 
As published in the Hamilton Spectator, April 8, 2002
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com