U.S. Politics and You

U.S

. politics and you Tahir Khorasanee, LL.M. Senior Associate, Steinbergs LLP As the United States witnesses a significant political transition, many Canadians find themselves pondering a similar challenge: the evolving landscape of an aging workforce. From safeguarding legal protections to ensuring effective workplace accommodations, here's a look at what Canadian businesses must consider when managing experienced leaders. In Canada, our laws stand as a bulwark against unfair treatment of older workers. These protections are not just legal formalities but are grounded in the belief that age and experience bring invaluable insights and wisdom. Should an older employee be dismissed due to age or health, they may have the right to be reinstated with back pay. This reflects a broader legal commitment to fairness and respect. As Shakespeare wisely noted, "The age of a man is like the autumn of the year," emphasizing that, like autumn, age brings with it a wealth of experience and a shift in roles that must be acknowledged and respected. For older CEOs who may be struggling to lead effectively, the Board of Directors must step up. Their duty extends beyond mere oversight; they are legally obligated to address these issues with gravity and sensitivity. This includes calling for medical evaluations and planning for succession with foresight and care. Whether in a public or private entity, directors must ensure that the CEO’s ability to steer the company remains intact, balancing respect for their experience with the organization’s ongoing needs. While employees are not required to disclose health issues, employers have a moral and legal obligation to ensure a safe workplace. This means removing individuals from roles where their health might pose a risk to others. For instance, if a bus driver or airline pilot's health could endanger passengers, it’s imperative to reassign them to a safer role. Employers must engage in compassionate, meaningful dialogues to find reasonable accommodations, often with guidance from medical professionals like occupational therapists. Navigating Severance and Reinstatement When older employees lose their jobs, they often receive higher severance pay. However, if they believe their dismissal was discriminatory, they can challenge it. With strong legal representation, these individuals may seek reinstatement through the Human Rights Tribunal and claim additional compensation for damages like injury to dignity and self-respect. Consider the landmark case of Fair v. Hamilton-Wentworth District School Board, where Sharon Fair endured a decade-long struggle but ultimately achieved reinstatement with full back pay (resulting in over 10 years of full pay). This case demonstrates the potential for significant outcomes when human rights violations occur, showcasing the power of perseverance and effective legal advocacy. Understanding Discrimination Discrimination doesn’t need to be intentional to be considered illegal. What matters is whether discrimination occurred, regardless of intent. Often, direct evidence is elusive, so decision-makers must piece together indirect evidence to determine if discrimination has taken place. Even if age or health is just one of many factors, it can still be deemed discriminatory. When discrimination is proven, employers can refuse accommodations only if they would cause undue hardship. The law focuses on three key considerations: Cost External sources of funding Health and safety requirements Other factors cannot be used to determine undue hardship. If an employer can demonstrate that accommodating an employee would cause undue hardship, they may be absolved from additional damages or remedies under the Human Rights Code, which typically include back pay and compensation for injury to dignity. These employees are therefore only entitled to severance pay. Older employees typically receive higher severance pay, but this is not always the case. For example, in Flack v. Whiteoak Ford Lincoln Sales Limited, a 61-year-old finance manager received only two months’ notice due to his brief tenure and the nature of his role. The court’s decision reflected an assessment of his actual responsibilities versus his job title. While Mr. Flack's job title was finance manager, he was in reality a sales associate selling financial products for a car dealership. Embracing the Wisdom of Experience Older employees bring a profound well of wisdom and experience to the workplace. As Cicero aptly stated, “For there is assuredly nothing dearer to a man than wisdom, and though age takes away all else, it undoubtedly brings us that.” To effectively harness this valuable asset, businesses should: Plan for Succession: Develop clear, forward-thinking plans to manage transitions for older executives. Ensure Safety: Create a safe work environment and make reasonable accommodations for those with health issues. Understand Legal Obligations: Be fully aware of your responsibilities under human rights laws, including managing discrimination and accommodation requests. Review Severance Policies: Ensure that severance policies are fair and comply with legal standards, considering the complexities of age and tenure. By addressing these factors with compassion and legal savvy, Canadian businesses can better navigate the evolving needs of an aging workforce, respecting the invaluable contributions of older executives while maintaining compliance with legal requirements. After all, ‘it is never too late to be what you might have been.’