The High Price of Age Discrimination

April 29, 2013 | Thomas V. Duke

One of the most important issues facing
employers today is the management of employees of the baby boomer generation
who are nearing the end of their careers.
Organizations need to consider their succession plans, while respecting
the rights of senior employees who do not want to retire at the age of 65.

A recent decision of the Human Rights
Tribunal of Alberta provides an example of the dangers for employers if they
fail to properly manage employees near the age of retirement. In Cowling
v. Alberta Employment & Immigration
, 2012 AHRC 12, the Alberta Human
Rights Tribunal ordered that the complainant be reinstated and awarded
approximately five years’ backpay, together with general damages of $15,000, interest
and costs.

The complainant in this case worked as a
labour relations officer and was regarded as an exemplary public service
employee for eight years on a series of term contracts.

In 2007, the complainant, who was 67 years
old at the time, re-applied for a position as she had been informed that her
contract would not be renewed past the May 2007 expiration date. The employer planned to restructure the
position Ms. Cowling had held, downgrading it from an LRO 3 to an LRO 2.

Ms. Cowling applied for the lower-level
position and was selected for an interview.
Neither Cowling nor the other 110 applicants were successful in securing
the position. In May 2007, Ms. Cowling’s fourth employment contract expired,
and her employment ended.

Shortly after this time, the employer
opened a competition for a labour relations advisor, a management position substantially
similar to the job Ms. Cowling had performed.
Due to some confusion regarding the closing date, Ms. Cowling did not
apply for the position. Less than a year
later, she filed a complaint to the Alberta Human Rights Tribunal.

The Tribunal allowed her complaint, finding
that the evidence strongly supported the conclusion that the employer
discriminated on the basis of Ms. Cowling’s age.

The remedy, including five years of lost
wages (discounted by 30 percent to recognize the “tenuous nature of a contract
position”) together with general damages and reinstatement, is significantly
more than any employee would typically receive in a wrongful dismissal action,
especially one with only eight years service.

This case illustrates the dangers employers
face when dealing with older employees who, in many cases, have no intention of
retiring. Employers should be cautious
when they establish criteria for promotion or appointments. If there is a perception that such criteria
disadvantage older workers, this may constitute age-based discrimination.

The Province of Alberta is appealing the
decision. We will continue to follow the
developments and update you as this important issue continues to evolve.


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