Age discrimination remains a live risk for employers in British Columbia, particularly in termination and promotion decisions. While explicit bias is generally rare, conduct from which age discrimination may be inferred can still give rise to liability under the BC Human Rights Code.
In this blog, we outline:
- What age-based discrimination is under the Code
- How the BC Human Rights Tribunal analyzes these claims
- The legal framework surrounding forced retirement
1. What is age-based discrimination?
Age-based discrimination occurs when an employee experiences a disadvantage in employment and age is a factor in that outcome.
Under the Code, a complainant must establish that:
- They have a protected characteristic, such as age;
- They experienced an adverse impact in employment, such as termination or demotion; and
- Their protected characteristic was a factor in the adverse impact.
Notably, to establish discrimination, age does not need to be the sole or primary reason for the adverse impact. It just needs to be part of the decision.
2. How the Tribunal assesses age discrimination
The BC Human Rights Tribunal takes a contextual, fact-driven approach when assessing allegations of age discrimination. Several key principles and considerations regularly emerge in these cases.
- Circumstantial evidence often plays a significant role
Direct evidence of discrimination is rare. Employers are unlikely to explicitly state that a decision was based on an employee’s age (e.g., “you’re too old”). Accordingly, the Tribunal has recognized that a finding of discrimination can be made based on circumstantial evidence and reasonable inferences drawn from that evidence.
Such circumstantial evidence may include:
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- Replacing an employee with a younger worker;
- Comments reflecting age-based stereotypes, such as assumptions that an employee is slower or less adaptable;
- Timing surrounding workplace decisions; or
- Shifting or inconsistent explanations from an employer’s actions.
Many discrimination cases turn on whose version of events is accepted. The Tribunal carefully assesses internal consistency, corroboration, and documentary evidence, including emails, notes, or performance records, which are often decisive.
For example, in Prom v. Verka Food International Ltd. and Gagan Matta, 2023 BCHRT 130, the Tribunal grappled with contrasting evidence about whether the complainant was told by the respondent at the time of termination that he was “old and slow” and was being replaced by “a younger guy.” The Tribunal found that the complainant’s evidence was more fulsome and consistent on this issue, taking into consideration notes he had taken following this meeting, as well as the respondent’s evidence regarding concerns about the complainant’s pace of work, in assessing the overall probabilities.
This case highlights the importance of accurate documentation and consistent communication when employers are making workplace decisions that may later be scrutinized.
- Legitimate business reasons must be free from discrimination
Employers are entitled to make legitimate business decisions, including restructuring roles, managing performance, and terminating employment. However, those decisions must be free from discriminatory considerations.
Even where an employer can point to a valid business rationale, a finding of discrimination may still arise if age was a factor in the decision-making process.
- Not all discrimination is unlawful: the BFOR defence
Not every workplace rule or requirement that affects older employees will amount to unlawful discrimination.
In limited circumstances, an employer may justify a workplace requirement that has a discriminatory effect by establishing that it is a bona fide occupational requirement. This requires the employer to demonstrate that:
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- The standard was adopted for a purpose rationally connected to job performance;
- The standard was adopted honestly and in good faith; and
- The standard is reasonably necessary to accomplish a legitimate work-related purpose.
This defence is applied narrowly. Employers must show that they have considered alternatives and that accommodating the employee would be impractical or would impose undue hardship. In the context of age, this most commonly arises where physical or operational requirements are said to limit an employee’s ability to perform the role.
3. Forced / mandatory retirement
Mandatory retirement is generally prohibited in British Columbia. As a general rule, employers cannot require an employee to retire simply because they have reached a certain age. Doing so will ordinarily constitute prima facie age discrimination under the Human Rights Code. However, the law recognizes narrow statutory exceptions.
Section 13(3)(b) of the Code creates an important exception: age-based distinctions are permitted where they relate to the operation of a bona fide retirement, superannuation, or pension plan.
One frequently cited decision in this area is Yaremy v. City of Vancouver and another, where the Tribunal dismissed a complaint challenging mandatory retirement at age 60 for firefighters. While the termination was based on age, the Tribunal found that the requirement formed part of a bona fide retirement and pension scheme and was therefore exempt under the Code. This case illustrates that age-based retirement policies may be permissible where they are closely tied to a legitimate pension or retirement plan.
Key takeaways for employers
Age discrimination claims are often fact-specific and turn on subtle inferences rather than overt conduct. Employers should ensure that decisions are grounded in objective, well-documented, non-discriminatory reasons, while employees should be aware that even indirect or circumstantial evidence can support a claim. Navigating these issues requires a careful understanding of both the legal framework and the surrounding facts.
If you have any questions about age-based discrimination or forced retirement, whether you are an employer or an employee, please contact Ian Jung or any of the lawyers at Ascent Employment Law – we’re here to help!
