The Inter-generational Workplace Presentation at the 2019 Canadian Elder Law Conference: Interview with Kirsten Hume Scrimshaw

Practice Point

The Inter-generational Workplace Presentation at the 2019 Canadian Elder Law Conference: Interview with Kirsten Hume Scrimshaw

By Sara Pon – Canadian Centre for Elder Law

We are grateful to you for putting together the panel on age discrimination. Can you describe your panel on the inter-generational workplace?

Our panel includes lawyers with experience to provide both employee and employer perspectives on a range of legal issues that arise in the “inter-generational workplace”.

Menachem Freedman from HHBG Lawyers will provide the “employee side” angle, covering:

  • the fundamentals of age discrimination;
  • how age affects the amount of notice an employer must provide on termination; and
  • the overlap between family status discrimination, age discrimination, and elder care.

As co-counsel on the recent family status decisions in Suen v. Envirocon Environmental Services, Menachem can give valuable insight into these issues. I will take on the role of giving more of an “employer-side” perspective, and will address:

  • the intersection between age discrimination and disability;
  • how to address retirement; and
  • other ways that inter-generational conflict can manifest in the workplace, such as dealing with bullying and harassment issues.

I’m also happy that Ashley Mitchell, a partner at Miller Thomson, will:

  • explain how the Human Rights Code treats pension and health benefits; and
  • provide practical tips on balancing the prohibition on age discrimination and implementing practical pension and health benefit plans.

Why do labour and employment lawyers need to understand aging issues?

The effect of the “aging workforce” has been a discussion in the labour and employment law community for some time. In 2008, the definition of “age” in the BC Human Rights Code was amended to effectively abolish mandatory retirement at age 65, and lawyers have been exploring and debating the effects of this change ever since.

Ultimately, as the proportion of older workers increases, employers and employees will be seeing more issues related to aging. Lawyers who advise them need to understand how age can affect so many different aspects of the employment relationship, such as:

  1. responding to performance issues;
  2. accommodating the medical or family care needs of older workers; and
  3. administering benefit plans when an insurer no longer covers employees over a certain age.

On the other side, why do elder law lawyers need to understand human rights law better?

In my experience, human rights issues in the workplace rarely arise in a vacuum. If a lawyer is advising an older worker, or a person who has recently left the paid workforce, it’s important to understand the scope of the employee’s rights and the employer’s obligations to ensure fair treatment. Discrimination on the basis of age can overlap with a variety of other legal issues. For example, if a lawyer is advising a client on estate planning issues following retirement, they should be alive to the possibility that the employee has been prematurely pushed out of employment due to age discrimination. If assisting a family in caring for an older relative, the lawyer needs to be aware of the duty to accommodate certain family care obligations. Discrimination on the basis of age, sex, disability (mental or physical) and family status frequently intersect.

What would you say is the most pressing legal issue facing older adults who are engaging in paid employment?

Like many areas of the law, one of the real hurdles in addressing age discrimination in employment is proof. Older employees who are terminated without cause might subjectively believe that the underlying reason for the decision is their advancing age, but finding evidence that age played a role in the decision to terminate can be extremely difficult.

Do you see a lot of recorded human rights decisions involving older complainants? If not, why?

The statistics I’ve reviewed from the BC Human Rights Tribunal show that the number of complaints filed on the basis of age is low, compared with other grounds of discrimination. For example, in 2018-19, the most common ground included in a complaint was disability (at 46%), whereas complaints based on age were the least common, at 6%. Then, when you realise that less than half the complaints sent to the Tribunal are accepted for filing, and about half of those are settled, there simply are not many age-related complaints that proceed to a hearing. In 2018-19, there were only 4 final decisions from the Tribunal that were decided on the basis of age discrimination.

I would be speculating to explain why there are so few age-related complaints. However, when reflecting on my own experience in providing workplace law advice, I believe it again comes back to the difficulties in proving the nexus between the discrimination and the employee’s age. Also, where there is an overlap between various grounds of discrimination, such as age and disability, or age and family status, it can often be easier to find evidence to show a decision was based on the employee’s disability or family status than age, so it is more likely the complainant will pursue the alternative ground of discrimination.

You represent a mix of complainants and respondents, which is not common in labour and human rights law. How does that experience impact your practice?

Yes, although I focus my work on representing employers, I do represent employees as well, which I think is an important way to ensure I provide my clients with comprehensive advice. Thinking through a legal issue from both sides gives valuable insight into different strategies and problem-solving approaches. If I’m advising a complainant, I understand the business pressures on their employer, as well as some of the common errors employers make (even when they are well-intentioned). For my employer clients, I can come up with more creative solutions to accommodation issues, based on what I’ve heard from previous complainants and based on successful approaches from other cases.

Are there any particular ethical or practice issues that lawyers need to watch out for in working with clients facing age discrimination in the workplace?

One of the key practice issues in human rights law is managing client expectations. I find that employers can be caught off-guard on just how broad their duty to accommodate can be. Some might not even realise that it’s not legal to force mandatory retirement at a certain age. On the flip side, when advising complainants, it is important for them to understand what legal remedies are actually available to them, because someone might have a sense of being wronged, but the Tribunal isn’t able to make the order they want.

What Canadian Elder Law Conferences sessions are you most excited about this year?

I am really looking forward to getting a broader understanding of elder law issues in general, but if I had to pick one, I would say that the session on use of cannabis on long-term care homes looks fascinating, and I expect it will have some common issues with debates on use of cannabis in the workplace.

Canadian Elder Law Conference

The Canadian Elder Law Conference 2019, entitled Bridging the Gap: Elder Law for Everyone will be taking place from November 14-15, 2019 in Vancouver, BC. Kirsten’s presentation, The Inter-generational Workplace, will take place on Day 2 of the conference, Friday, November 15, from 3:35 pm to 4:25 pm.