July 31, 2013
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In the days leading up to Stephen Harper’s cabinet shuffle on July 15, there was a lot of hype about "rejuvenation" and "generational change". Even though Harper ended up keeping some of his veteran ministers, the message was that he had put a fresh, young face on the cabinet in an effort to rebrand his team before the 2015 election.

The ministers who were sent out to speak to the press following the swearing-in ceremony were 33-year old Michelle Rempel, described as, "young, smart, friendly and tech-savvy" and an "avid tweeter", and 44-year old Chris Alexander. One media outlet referred to them as the "blonde-haired, blue-eyed" "generational change couple".

This celebration of 'in with the new' (young) and 'out with the old' might still be acceptable in the world of politics. But an employer trying to freshen up the workplace by getting rid of older workers would quickly find itself the subject of a human rights complaint.

Until recently, it was legally permissible in some parts of Canada to discriminate against workers once they turned 65. But now, the definition of "age" in human rights legislation throughout the country has been amended to include employees who are older than 65. This change reflects the reality that many people want or need to continue working past an arbitrarily determined age.

One obvious consequence of this change is that an employer can no longer assume, just because an employee is over 60, that she is planning her retirement. If the employer starts asking, even casually, whether the employee has thought about retirement, these comments could be construed as discriminatory.

The removal of the upper limit for age discrimination means more than the abolition of mandatory retirement. It also serves as a reminder to employers about their hiring practices. Advertising for "dynamic", "energetic" employees, for example, could constitute age discrimination against older candidates who are perceived to be slowing down and no longer productive. A more challenging consequence is that employers are now required to accommodate older employees who may be experiencing age-related performance difficulties.

So, while getting rid of individuals who are perceived as old and unexciting may be an acceptable strategy for a government trying to attract young voters and win an election, it is a guaranteed losing strategy in the workplace.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law