Throughout North America, employers have become increasingly intolerant toward sexual, religious, cultural, gender or racial discrimination toward workers.
Now there is a push in many jurisdictions to eliminate age discrimination against employees who have reached age 65, but want to continue working. In spite of legislation aimed at protecting workers who don’t wish to retire, many employers haven’t quite grasped their responsibilities, according to Robert Smithson, a lawyer specializing in employment and labor laws.
Smithson, of Pushor, Mitchell LLP, warns that many supervisors are engaging in age discrimination without even realizing it, by making comments such as, “Hey, Gramps, do you think you can lift that box or should I get Billy to help you?”
If “Gramps” is suddenly fired on the basis that he is no longer capable of performing his job and he lodges an age discrimination complaint with a human rights board, any negative comments you or others have made about his age can come back to haunt you, says Smithson.
“If my experience is an indicator, age-based discrimination claims are on the rise,” says Smithson. “The first key indicator of discrimination is the timing of the termination.”
If a worker who has met performance expectations over the years is suddenly let go upon reaching age 65 and the employee lodges an age discrimination complaint, the timing of the firing will be a red flag to a human rights board investigating that complaint.
“The second key indicator is loose, age-related comments such as ‘Why are you still here? Shouldn’t you be retired?’”
Smithson says workplaces need to implement and enforce policies banning age discrimination or harassment and provide age sensitivity training to all workers.
Dealing with reduced productivity and health-related absences:
Let’s say you have a worker age 65 or older who is showing a marked reduction in productivity, is no longer meeting the demands of the job, or is taking excessive sick days for medical reasons. Before terminating that person’s employment, the employer needs to be able to prove that it has taken reasonable steps to accommodate the worker to the point of undue hardship.
“The employer has to get past subjective ideas about employees being too old for a job. Think about objective, measurable job requirements,” says Smithson.
In other words, you need to be able to prove that the worker’s productivity has slipped or his/her quality of work is no longer acceptable, by citing hard numbers. For example, an employer could note that “Bob” built an average of five widgets per hour five years ago but now he can only build two and furthermore, the percentage of defects in Bob’s work caught by quality control has tripled over the past number of months or years.
“The ultimate question asked (by authorities examining age discrimination complaints) is always ‘Why was this employee selected for termination?’”
How to accommodate workers past age 65
Smithson says there are several ways to entice older workers who are not performing as well as they once did to leave. One approach is to offer the option of working fewer days or hours and easing into retirement.
Another is to reach a mutual agreement with the worker to reduce his or her responsibilities by moving that person into a lower-level job at a reduced rate of pay. Other options include offering that person an attractive retirement package or some other form of enticement to give up the job.