Canadian courts have long held that older workers face more challenges in the employment world. That’s why it is a fundamental rule that older age tends to be a factor that lengthens an employee’s common law notice entitlement, as it is presumed that older employees are at a disadvantage competing for jobs with younger employees.
Why does age matter in employment law?
For this reason, age is also a protected ground in Canadian human rights law, both in the federal and provincial human rights statutes. That means that employers cannot discriminate against employees on the basis of their age. While age discrimination can be targeted at individuals who are deemed too young, in the employment context this almost exclusively tends to be cases of older people facing obstacles and road blocks.
What are common examples of age discrimination at work?
There are many common example of age discrimination, in which older employees are disadvantaged because their employer believes they lack ability due to their age. One example is when older employees are persistently encouraged to retire or give a date for retirement, which places them in an unfair situation that younger employees would not find themselves in.
Another situation is refusing to give certain tasks, opportunities, or incentives to older employees, or unfairly targeting older employees for reductions in staff or reorganizations. It is also discriminatory to deny benefits to older employees, even if there is a proven financial incentive to do so.
How does age bias show up in hiring?
However, a large amount of age discrimination comes in the form of employers not hiring people based on their age. This is never done as a policy, but more a result of purposeful or incidental biases in the hiring process, such as screening for certain qualities that favour younger employees, or having an institutional culture of younger employees that includes the hiring managers. As a result, this discrimination can be difficult to prove. Unless an employee can show proof that they were passed over for another younger candidate purely because of their age, or show very clear and obvious data that a company does not hire over a certain age, this kind of discrimination is almost always invisible…
Can AI make age discrimination worse in Canada?
…That is unless an employee can demonstrate that a company uses AI hiring software that, through initial programming or learning of that company’s trends, starts disqualifying people over a certain age. This is the case being put forward in a California case by a group of Plaintiffs over the age of forty years old against the tech firm Workday, a human resources software company. The collective action suit alleges that Workday’s algorithm automatically disqualifies candidates over the age of forty, with some of the Plaintiffs having submitted hundreds of applications only to receive rejection notices immediately. While this case is in the U.S., it raises important questions about AI employment discrimination in Canada, where similar concerns about bias in hiring technology are beginning to emerge.
The case has not proceeded to discovery, but such biases in hiring algorithms do occur. Sometimes they are the result of malicious programming, but often it can be the case of the algorithm learning the company’s own hiring preferences. Yes, the true dystopian discrimination machine was the humans all along!
How can Whitten and Lublin help?
Age discrimination is often hard to spot, especially when employers take pains to hide it (unless they use the above-noted “Don’t Trust Anybody Over 40” AI software to do their hiring). If you are an employee and believe you have been the victim of age discrimination, Whitten and Lublin is here to help. Contact us online or call 416 640-2667.
Author – Aaron Zaltzman
