Mind the (Generation) Gap: Tackling age discrimination in hiring, performance, benefits and termination

With the demise of mandatory retirement, how should an employer deal with accommodation and other issues that may arise with age? With concerns regarding recruitment, revitalization and succession planning? Following the end of mandatory retirement, can employers maintain benefit plans that discriminate against older workers? In this session, these and other timely questions relating to the older workforce will be addressed by Lancaster’s panel of experts. Issues to be discussed include:

• Recruitment and hiring: What sorts of recruitment language may indirectly discriminate by containing stereotyped assumptions about older workers? In what circumstances can an organization consider succession planning or recruitment of younger workers to ensure that future needs of the workplace will be met? What pre-employment tests have adjudicators found to discriminate based on age? At what point are employers required to accommodate older applicants during the hiring process and to what extent? Are older workers required to disclose age-related conditions that may impact performance during the hiring process? How can employers actively recruit for an intergenerational workforce? How can the needs and rights of younger workers be balanced against those of older workers in terms of hiring and recruitment?
• Promotion and performance: In selecting for promotions, is it discriminatory to hold older workers to the same production and attendance standards as younger workers? How should skills, knowledge and ability requirements be interpreted to protect older workers from discrimination? Is it acceptable to deny an older worker a promotion on the basis that he or she may be retiring in the coming years? Can the employer institute tests to assess whether the competency of a worker is affected by increasing age? How should an employer deal with significantly reduced performance due to disability that is related to age, such as early stages of dementia, or age-related progressive illnesses such as Parkinson’s disease, Alzheimer’s, deteriorating eyesight/hearing, or mobility issues? How can an employer evaluate older workers’ productivity without violating human rights legislation?
• Accommodating older workers: Are certain types of disabilities more commonly associated with age and, if so, is the duty to accommodate to be applied differently than with other disabilities? What medical information must employees provide their employer to show that an age-related accommodation is required? How should employers approach employees whose performance may be suffering due to age? Are employers required to modify duties or lower work performance standards to accommodate the aging worker? Is it discriminatory for an employer to suggest retirement to an older worker? What about diminished hours? On what basis may an older worker reject accommodation options put forward by the employer? Must an employer take into account increased family demands that may exist for older workers, such as the need to provide care for spouses or elderly parents?
• Discrimination in benefit plans: Can benefit plans make distinctions based on age? What measures can an employer implement to contain the costs associated with a retirement or other benefit program? Does legislation permitting these distinctions, such as Ontario’s Employment Standards Act, offend the Charter? What exceptions are there to the abolition of mandatory retirement by virtue of pension plans? Are two-tier systems of terms and conditions of employment (including pension plans), with inferior wages and benefits going to entry-level workers, permissible?
• Remedies for unfair termination: How does “older” age affect reasonable notice? Is there a growing willingness to order reinstatement of an older worker? Are pension benefits deductible from wrongful dismissal awards? In the case of termination based on age discrimination, are damages to the date of retirement the norm, or do decision-makers discount for contingencies? How does the traditional notion of retirement age affect the assessment of damages for lost wages?