The high price of age discrimination

Worker gets 5 years' pay plus $15,000 after failing to land job replacing old position at age 67
By Thomas Duke
|employmentlawtoday.com|Last Updated: 05/02/2013

One of the most important issues facing employers today is the management of employees of the baby boomer generation who are nearing the end of their careers. Organizations need to consider their succession plans, while respecting the rights of senior employees who do not want to retire at the age of 65.

A recent decision of the Human Rights Tribunal of Alberta provides an example of the dangers for employers if they fail to properly manage employees near the age of retirement. In Cowling v. Alberta Employment & Immigration, the Alberta Human Rights Tribunal ordered that the complainant be reinstated and awarded approximately five years’ backpay, together with general damages of $15,000, interest and costs.

Joan Cowling worked as a labour relations officer (LRO) and was regarded as an exemplary public service employee for eight years on a series of term contracts.

In 2007, Cowling, who was 67 years old at the time, re-applied for a position as she had been informed her contract would not be renewed past the May 2007 expiration date. The employer planned to restructure the position Cowling had held, downgrading it from an LRO 3 to an LRO 2.

Cowling applied for the lower-level position and was selected for an interview. Neither Cowling nor the other 110 applicants were successful in securing the position. In May 2007, Cowling’s fourth employment contract expired and her employment ended.

Shortly after this time, the employer opened a competition for a labour relations advisor, a management position substantially similar to the job Cowling had performed. Due to some confusion regarding the closing date, Cowling did not apply for the position. Less than a year later, she filed a complaint to the Alberta Human Rights Tribunal.

The tribunal allowed her complaint, finding the evidence strongly supported the conclusion the employer discriminated on the basis of Cowling’s age.

The remedy, including five years of lost wages — discounted by 30 per cent to recognize the "tenuous nature of a contract position" — together with general damages and reinstatement, is significantly more than any employee would typically receive in a wrongful dismissal action, especially one with only eight years of service.

This case illustrates the dangers employers face when dealing with older employees who, in many cases, have no intention of retiring. Employers should be cautious when they establish criteria for promotion or appointments. If there is a perception that such criteria disadvantage older workers, this may constitute age-based discrimination.

The Province of Alberta is appealing the decision.

For more information see:

Cowling v. Alberta Employment & Immigration (Dec. 13, 2012), File No. N2008/05/0051 (Alta. Human Rights Trib.).

Thomas V. Duke is a partner with Miller Thomson LLP in Edmonton. He can be reached at (780).429-9742
or tduke@millerthomson.com. This article is reproduced with the express permission of Miller Thomson LLP and Thomas Duke.

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