The Discussion Paper identifies a number of problems facing older workers. These include assumptions that older workers are less ambitious, hardworking and dynamic and are resistant to, or unable to cope with, technological change. Other major employment issues include the dismissal of older workers, targeting older workers in workplace reorganization (sometimes with ‘offers’ of early retirement and sometimes simply through termination or lay-off), difficulties faced by older workers in gaining employment and of course, mandatory retirement at age 65. Please note, the Commission does not oppose early retirement incentives that are truly voluntary.
The Discussion Paper recommends that the Commission develop tools to distinguish legitimate downsizing or performance issues from those that are related to age discrimination. What kinds of tools could assist the Commission in this regard?
The Discussion Paper also recommends that the Commission advocate for the extension of human rights protections on the basis of age to persons who are not subject to mandatory retirement and who continue to work past age 65. Do you have any comments on this proposal?
Currently, the law allows employers to implement mandatory retirement at age 65. Do you feel it is time for this issue to be revisited? If so, how should the retirement age for a worker be established?
In addition to the need for affordable housing, seniors need housing that is safe, accessible, adaptable and barrier-free.
The Commission is proposing to examine the recommendations of the National Advisory Council on Aging and other organizations with respect to barrier-free design in order to incorporate the recommendations into policy work in the area of housing. Are there other policy initiatives the Commission can pursue to address the special housing needs of seniors?
Health Care, Institutions and Services
The needs of the aging population must be a critical consideration in the provision of health care services. Some of the specific concerns in relation to health care include:
- Difficulties faced by seniors in accessing health care services, e.g. problems in finding a family physician and a lack of treatment for particular medical conditions;
- Limited benefits coverage of the health care system which may result in seniors having to pay for some medically-related and dental services;
- Inadequate facilities and services for long-term care, complex continuing care and rehabilitation; and
- Inadequate community-based health care.
Despite an increase in the use of community-based health care, the need for adequate nursing home care is predicted to increase. There is also a need for facilities which address the needs of particular seniors, e.g. gay and lesbian seniors or seniors with specific cultural or religious needs.
In addition to health related services, another significant service for seniors is public transit.
The Commission has suggested two initiatives in relation to health care and institutional services:
(1) communicating with the Ministry of Health and Long-term Care to inquire about investment in chronic care, complex-continuing care and rehabilitation services and facilities; and
(2) communicating with the College of Physicians and Surgeons, the Ontario Medical Association and the Canadian Medical Association to advise that differential access to medical treatment could constitute discrimination on the basis of age and, in many cases, disability.
Are there other organizations or bodies that should be included in this type of outreach? Are there other problems of discrimination against seniors in the provision of health care or institutional services?
The Commission is planning to incorporate the principles in the Discussion Paper into its report on public transit accessibility in Ontario. Are there any issues in relation to access to public transit that the Commission can address?
Elder abuse and neglect
Elder abuse occurs in large part due to negative attitudes towards the elderly or their economic and social vulnerability. The Ministry of Citizenship, Culture and Recreation and the Ontario Seniors’ Secretariat have established the Round Table for Ontario’s Elder Abuse Strategy to develop a comprehensive provincial plan to combat elder abuse.
The Commission will monitor the proceedings and outcomes of the Round Table for Ontario’s Elder Abuse Strategy. It is hoped that the Commission’s efforts to raise public awareness around ‘ageism’, in part through this consultation process, will help to combat the attitudes that contribute to elder abuse.
Do you have any comments with respect to any aspect of this issue that falls within the Commission’s jurisdiction?
Increasing numbers of Canadians are caring for aging or ailing family members. Although elder care is not about age discrimination, it is an issue that is important to both older persons and younger persons alike, particularly in light of the aging population and an increased emphasis by governments on home care.
The Commission’s publication Human Rights at Work recognizes the issues raised by elder care and notes that the Code ground of “family status” includes elder care given to a parent. In addition, the grounds “marital status” and “same-sex partnership status” may cover elder care between same-sex partners and spouses. The Ministry of Labour is proposing to add a new family leave entitlement to the Employment Standards Act which would give employees, in workplaces with 50 or more employees, up to 10 days of unpaid, job-protected leave per year to deal with family crisis, personal or family illness or death. Any obligations under the Code would be separate from any obligations under a revised Employment Standard Act, and would require employers to accommodate the family related needs of employees up to the point of undue hardship.
The Commission plans to develop a public policy statement on elder care, supported by community consultation, as it relates to grounds in the Code. It is also encouraging the Ministry of Labour to include provisions related to elder care in any revisions to employment standards legislation.
Should the prohibition against discrimination on the basis of “family status”, “marital status” and “same-sex partnership status” include situations where workers care for aging or ailing parents, spouses or same-sex partners? What is the extent of the employer’s duty to accommodate these employees? What should a Commission policy statement on elder care contain?
Permissible distinctions on the basis of age
There are some exceptions within the Code which permit distinctions to be made on the basis of age. For example, in certain circumstances, pension plans can make distinctions on the basis of age (s. 25(2)) and preferential treatment for persons over the age of sixty-five years is permitted (s. 15).
There may be situations where preferential treatment is aimed at persons who have not yet reached the age of 65 (therefore, the s. 15 defence does not apply). Examples include discounts for persons over 55 years of age, increased vacation time for employees who reach a certain age and other programs related to the transition into retirement.
These may be permissible under s. 14 of the Code, which deals with special programs, provided they meet all the requirements. Alternatively, following the Supreme Court of Canada’s decision in Law v. Canada (Minister of Employment and Immigration), they may be upheld on the basis that they are not discriminatory as they do not violate the essential human dignity and freedom of those who are too young to qualify.
How should the Commission evaluate claims of age discrimination by persons who are too young to qualify for programs that give benefits to individuals under the age of 65?