Pensions, Job Performance, Discrimination and Accommodation: Coping with the challenges of an aging workforce
9:00 AM – 10:15 AM (April 23 and 24, 2014)
TOPICS
The converging factors of an aging population, retirement and pension plan insecurity, and the end of mandatory retirement have resulted in an increased percentage of older workers in the workplace. With older workers staying in their jobs longer, and in many cases seeking to return to the workforce, what legal and practical issues does the phenomenon of an aging workforce raise? What challenges arise from the need to accommodate, and to ensure a non-discriminatory environment for older workers? How can productivity standards, accommodation obligations, and concerns about recruitment, revitalization and succession planning be reconciled in this environment?
- Assessing the demographics: What proportion of the workforce is staying in employment past normal retirement age? Are these numbers increasing? Will workers be forced to work longer because of a lack of adequate retirement resources? Is it essential to Canada’s economic well-being that people work longer? If it is desirable to have Canadians work longer, what incentives should be offered to encourage them to do so? If members of the “baby boom” generation do work longer, what will be the impact on younger workers, especially the “echo” generation? Is there a way to reconcile the needs of these different groups of workers?
- What workplace policies amount to age-based discrimination? What sorts of workplace standards or rules have been found to discriminate, directly or indirectly, on the basis of age? Are certain criteria for hiring or promotion – such as “career or developmental potential,” describing a position as “entry-level” or suiting a “junior professional” – euphemisms for age, and therefore impermissible? When, if ever, can an organization consider succession planning and the need for organizational renewal or recruitment of younger workers to ensure that future needs of the workplace will be met? Will hiring criteria that seek to give a “foot in the door” to new graduates and younger workers, or consider amenability to certain job conditions such as menial tasks, low responsibility or pay, or shift work, necessarily discriminate against older employees? Can an older worker ever be rejected as being “overqualified,” or is this discriminatory? Is it discriminatory to hold older workers to the same production and attendance standards as younger workers?
- What’s required by the duty to accommodate: 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? Are employers required to modify duties or to lower work performance standards to accommodate the aging worker? Can an employer institute tests to assess whether the capacity of a worker to perform his or her job has been affected by increasing age? How should an employer deal with significantly reduced performance due to disability that is clearly related to age, such as early stages of dementia, or age-related progressive illnesses such as Parkinson’s disease, deteriorating eyesight, or mobility issues? 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?
- The scale of damages/remedies for age discrimination: What remedies are being awarded in cases of age-based discrimination in employment? Are damages for age-based discrimination on the rise? Is there a growing willingness to order reinstatement of an older worker? Are damages to the date of retirement the norm, or do decision-makers discount for other contingencies? How is the traditional notion of retirement age being applied in the context of assessing damages for discriminatory treatment?
- The impact of mandatory retirement: Are there any Canadian jurisdictions in which mandatory retirement still exists? Under what conditions is this legislatively permissible? Can age still be found to be a bona fide occupational requirement in certain types of employment? What exceptions are made to the abolition of mandatory retirement by human rights or other legislation by virtue of pension 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? Are two-tier systems of terms and conditions of employment (including pension plans), with inferior wages and benefits going to entry-level workers, permissible?
- Balancing rights of aging workers and the rights of younger workers:What measures should workplace parties take to balance the rights of aging workers with the rights of younger workers? Is there a way to reconcile the needs of these different groups of workers, by establishing mentoring, job-sharing or phased-in retirement programs that will train younger workers while allowing organizations to benefit from the skills and experience of older workers? Can flexible hours, telework, part-time work or temporary project work be used in a way that would benefit both older employees working toward retirement, and their younger counterparts?