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Discrimination - Based on Aging: Concerns for Loss of Attributes of Youthfulness
Question: Can employers discriminate based on age under the Human Rights Code in Ontario?
Answer: Yes, but only in specific circumstances where age is a genuine requirement for the job. Understanding the nuances of this law, like in the case of Ouwroulis v. New Locomotion, 2009 HRTO 1498, can help protect your rights and identify potential exceptions.
Youthfulness Within Employment
The Human Rights Code, R.S.O. 1990, c. H.19 provides a variety of protections from discrimination; however, in some situations, being where the discrimination is based upon a characteristic that is a genuine requirement of the employment, there is a limited exception that allows the discrimination despite the discrimination being based upon a reason usually protected by the Human Rights Code.
The Law
An interesting case, unfortunately dismissed as abandoned prior to a decision by the Human Rights Tribunal of Ontario, thus the answer to the legal issue remains undecided, involved the termination from employment of a female exotic dancer who was deemed too old and was lacking the appearance of youth.
Discrimination from employment based on age, among other characteristics, is protected per the Human Rights Code; which specifically states:
Employment
5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
In the Ouwroulis v. New Locomotion, 2009 HRTO 1498 case, the Human Rights Tribunal of Ontario was preparing to answer the question as to whether age as a factor in diminishing sex appeal was a sufficient reason for discrimination based on age. In this case, Ms. Ouwroulis was capable of doing the job duties without impairment by age, but was told that, "they were going in a new direction with younger girls" thus the age factor of concern related solely to appearance of youth.
Many within legal circles remain intrigued to know how this case would be decided if followed through rather than abandoned prior to a decision whereas such a decision would consider, and be based upon review of, the exception found at section 24(1)(b) of the Human Rights Code which permits age discrimination in some circumstances. Specifically, the exception states:
Special employment
24 (1) The right under section 5 to equal treatment with respect to employment is not infringed where,
...
(b) the discrimination in employment is for reasons of age, sex, record of offences or marital status if the age, sex, record of offences or marital status of the applicant is a reasonable and bona fide qualification because of the nature of the employment;
Conclusion
Considering how individually objective sex appeal is, it would be quite interesting to know if the Human Rights Tribunal of Ontario would have deemed age with appearance of youth as a bona fide qualification due to the nature of the employment.
