Age is a protected ground under the Alberta Human Rights Act
Age is a protected ground under the Alberta Human Rights Act. Section 7 of the Act states that “[n]o employer shall refuse to employ or refuse to continue to employ any person… because of… age.”
Accordingly, an employer terminating employment on the basis of age can result in a violation of section 7 of the Alberta Human Rights Act.
Such a violation of the Alberta Human Rights Act can be saved if certain requirements are met. The Supreme Court of Canada has articulated that: “an age-related limitation of rights is permitted… if it is based upon a “bona fide occupational qualification.”
The Test for Determining Whether a Discriminatory Standard is Reasonable and Justifiable
In order to determine whether an age-related limitation constitutes a bona fide occupational requirement, the Meiorin test is applied.
The Meiorin test is a three step test articulated by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Services Employees’ Union (BCGSEU), [1999] 3 SCR 3 [“Meiorin“].
The purpose of the test is to determine whether a discriminatory standard is reasonably necessary to achieve a legitimate work-related purpose, and whether the employee being discriminated against can be accommodated by the employer without imposing undue hardship on the employer.
More specifically, once an employee establishes a prima facie case of discrimination in the workplace, the Meiorin test provides that an employer must establish all of the following in order for the discriminatory standard to be upheld:
- the workplace standard must be rationally connected to the functions of the job being performed,
- the standard must be established honestly and in the good‑faith belief that it is necessary to fulfil a legitimate objective, and
- the standard itself must be reasonably necessary to accomplish the goal or purpose.
The third prong of the Meiorin has an additional six questions that must be considered:
- (a) Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard?
- (b) If alternative standards were investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented?
- (c) Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established?
- (d) Is there a way to do the job that is less discriminatory while still accomplishing the employer’s legitimate purpose?
- (e) Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?
- (f) Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles?
The above test is exhaustive and can be difficult for employers to meet.
The Meiorin Test Can be Difficult for Employers to Meet
For example, the Ontario Human Rights Commission has stated publically that “establishing age as a BFOR [bona fide occupational requirement] is very difficult” (Ontario Human Rights Commission, “DISCRIMINATION and AGE: Human Rights Issues Facing Older Persons In Ontario”, Discussion Paper May 31, 2001, at page 30, online: <http://www.ohrc.on.ca/en/discussion-paper-discrimination-and-age-human-rights-issues-facing-older-persons-ontario).
An employer using a standard that results in age discrimination will be hard pressed to justify that practice as a bona fide occupational requirement under the Meiorin test.
As a result, if an employee is able to make out a prima facie case of age discrimination, there may be little chance that the employer will be able to justify the discrimination on the basis of a bona fide occupational requirement under the Meiorin test.
Accordingly, employers engaging in such discriminatory practices may be liable for damages and providing common law reasonable notice to employees that have been discriminated against in the workplace.
Employment Law Notice Requirements
In employment law, the Bardal factors are generally accepted and applied when calculating the applicable length of reasonable notice an employee is entitled to under the common law.
The main Bardal factors include character of the employment, length of service (how long the employee worked for the employer), age of the employee at the time of termination and availability of similar employment.
Although, in employment law, the criteria for determining the appropriate amount of notice is the same for younger and older employees, older employees generally receive a longer notice period due to their age, length of service and the potentially greater difficulty they face obtaining similar employment.
The maximum notice period across Canada ranges from 18 to 24 months and recent employment law cases suggest that older employees with long service will generally receive close to the maximum amount of notice. For example, Canadian courts granted:
- A wrongully terminated 56 year old customer service representative working for his employer for 39 years was awarded 20 months of notice (Jones v Consumers Packaging Inc.)
- A wrongully terminated 72 year old digest writer working for her employer for 20 years was awarded 16 months of notice (Brown v Western Legal)
- A wrongully terminated 65 year old truck driver working for his employer for 18 years was awarded 18 months of notice (Systad v Ray-Mont Logistics Canada Inc)
- A wrongully terminated 70 year old machine operator working for his employer for 20 years was awarded 22 months of notice (Kotecha v Affina Canada ULC)
- A wrongully terminated 65 year old driver worker for his employer for 19 years was awarded 18 months of notice (Systad v Ray-Mont Logistics Canada)
The Duty to Mitigate in Employment Law
Employees who are terminated without cause are entitled to reasonable notice, but they have a duty to mitigate any damages arising from the loss of their employment by taking reasonable steps to secure comparable alternative employment.
Any failure to mitigate damages by an employee can result in deductions from any severance pay that may be awarded to the employee who failed to mitigate their damages.
Conclusion
If you believe your employment has been wrongfully terminated on the basis of age or other grounds protected by the Human Rights Act, you could be entitled to wrongful termination and punitive and aggravated damages from your employer.
You should seek legal counsel experienced in employment law to ensure you are treated fairly and that you receive all severance pay and damages you are entitled to.
Get in touch with our experienced employment lawyers today to get a free legal consultation. We know employment law and we’re here to help.
