Northern Exposure

Hiring Decisions and Older Workers — Avoiding Liability

By Alix Herber and Hadiya Roderique

Across Canada, human rights legislation prohibits employment discrimination on the basis of age. This applies to all aspects of the employment relationship — job advertisements, application forms, job interviews, hiring decisions, denial of promotional opportunities, and termination decisions.

Data from the Ontario Human Rights Commission for 2007-2008 and 2008-2009 indicate that age was cited in approximately 10 percent of employment-related human rights complaints (Ontario Human Rights Commission Annual Report, 2007-2008; Ontario Human Rights Commission Annual Report, 2008-2009). To insulate your organization from age discrimination claims, care must be taken in the hiring process.

Take care in the hiring process
To be safe, avoid asking for information that could lead to the inference that a prospective employee wasn’t hired because of his or her age.

  • Job advertisements: These should never refer to age. A statement such as “We are looking for young, dynamic individuals” or “Seeking individuals to rejuvenate our workforce” could be interpreted as seeking younger workers and therefore discriminatory to older workers.
  • Application forms and interviews: Application forms may ask whether an individual is over 18 years of age. No other questions about age should be asked on the form or during the interview process. Applicants shouldn’t be asked to state their date of birth on the application form. Employers may want to consider refraining from asking about the dates applicants got their educational degrees on the application form and during the interview. To protect against age discrimination claim, educational verification can be undertaken once an individual has been given a conditional job offer.

Employers should take steps to ensure that stereotypes about older workers don’t play a role in the hiring process. Older workers can bring skills and experience to the workplace. Some employers, however, discount older workers because they’re viewed as “stuck in their ways,” more costly in terms of salary and benefits, “overqualified,” or unable to get along with younger coworkers and supervisors.

The Ontario Human Rights Commission’s Policy on discrimination against older people because of age suggests the following about older workers:

  • they can be highly productive, offering considerable on-the-job experience;
  • they can do as well or better than younger workers on creativity, flexibility, information processing, accident rates, absenteeism, and turnover;
  • they can learn as well as younger workers with appropriate training methods and environments; and
  • they may not fear change, instead fearing discrimination.

Taking care can protect employers
When employers take care to avoid asking age questions in the hiring process, they can insulate themselves from liability. A recent Ontario decision, White v. Queen’s University (HRTO 640), demonstrates just that. White, age 62, was one of three internal applicants for a managerial position at the university’s physical plant. He was the only internal candidate interviewed and ultimately wasn’t hired. The university instead hired one of the external applicants who was in his 30s. White filed an application with the Human Rights Tribunal of Ontario alleging age discrimination.

White argued that he was more qualified than the person ultimately hired and that age was the only possible reason that the university could have had for not hiring him. The university’s defense was that White had demonstrated difficulties dealing with authority and interacting with customers, coworkers, and supervisors. The university also said he lacked knowledge of and enthusiasm for significant planned changes, including greater use of computer technology and “green” products.

The Tribunal supported the university and concluded that it had made a reasonable hiring decision. The Tribunal found that both candidates were qualified. As a result, it wasn’t unreasonable for the university to favor the successful candidate’s management experience and interpersonal skills, notwithstanding White’s familiarity with the university. The Tribunal noted a reasonable hiring decision wouldn’t likely be found to be discriminatory in the absence of direct evidence of discrimination.

Conclusion
When employers review candidates solely on their skills and ability to perform the job, they’re more likely to make a reasonable hiring decision and avoid human rights liability. As an added bonus, they’re more likely to end up with the right person for the position!