Extra requirement for retired teachers not discriminatory: Tribunal

Ontario school board required retired teachers to be certified to be supply teachers; no such requirement for non-retirees
|employmentlawtoday.com|Last Updated: 09/29/2011

An Ontario school board’s extra requirement for retired teachers to work as supply teachers does not discriminate against older teachers because of their age, the Ontario Human Rights Tribunal has ruled.

A teacher with the Thames Valley School Board in the London, Ont., area, retired in 2008. Like many of her retired colleagues, she wanted to be on the board’s occasional teacher list, which was the list of teachers not already working permanently with the board. Any teacher on the list could be called upon to fill in for any regular teachers that had to miss work.

The board received thousands of applications every year from recent teachers college graduates looking to get their career started and the board put many on its list each year without any special requirements. Many permanent part-time teachers were also on the list so they could supplement their part-time income with spot duty. However, the board instituted a policy in which retired teachers had to be certified in at least one specified area before being placed on the list. The areas were French, special education, music and technology, as these were areas where the board often needed occasional teachers.

The newly-retired teacher, who wasn’t certified in any of the school board’s specified subject areas, filed a human rights complaint, claiming the school board’s policy discriminated against older teachers because of their age.

The Ontario Human Rights Tribunal found the school board’s policy did not discriminate based on the protected ground of age. The policy created a distinction between teachers, as retirees could not become occasional teachers without being certified first, something younger graduates didn’t have to do. However, the distinction was based on the employment status of the retired teachers, not their age, said the tribunal.

The tribunal pointed out that the teachers chose when they retired and older teachers who weren’t retired were not subject to the certification requirements. In addition, retired teachers weren’t excluded from the occasional teacher list, they just had to meet certain qualifications. The tribunal noted that the retired teacher had the option to become a permanent part-time teacher and appear on the occasional teacher list without extra requirements rather than retire.

Since the grounds for distinction of the identified group — retired teachers — was employment status and not age, the grounds were not protected under human rights legislation, said the tribunal in dismissing the teacher’s complaint.

“Retired teachers in receipt of a pension can be identified by age because in order to retire and qualify for a pension, they are necessarily older teachers,” said the tribunal. “However, in my view, in order to find that the policy has an adverse impact on this group, the evidence must show that the distinction arises, at least in part, because of a prohibited ground of discrimination.”

For more information see:

Law v. Thames Valley District School Board, 2011 HRTO 953 (Ont. Human Rights Trib.).

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