In recent years, particularly due to labor shortages, older people have been encouraged to work longer or return to work after retirement.
While it is true in practice that there is an urgent need for workers in Quebec, it is not always the case that older people have easy access to work, and it seems to be even more difficult for women. For example, according to the Quebec Statistics Institute, it would be much more difficult for women aged 60 to 70 to maintain an equivalent employment rate to men.
Can age discrimination occur?
The Charter of Human Rights and Freedoms specifically provides that discrimination based on age is prohibited. However, there are various exceptions to this principle and it can even be said that the law relating to the prohibition of age discrimination is relative. For example :
● A law may provide for distinctions, exclusions or preferences based on age without this necessarily being discriminatory, as is the case in various social laws. By law we also mean a regulation, a government decision or even an order or order in council.
● This means that a private agreement, such as an employment contract or a collective agreement, must be free of discrimination based on age.
● In principle, questions that relate to a job applicant must be free of requests for information, particularly based on age.
● However, if the question of age is justified because the skills or qualities required to carry out a job require it, it can be raised without necessarily discriminating.
This last exception is important because different types of employment require particular qualities or skills. This is the case for certain manual activities where age can clearly become a serious obstacle to the performance of the activity in question. The same applies to drivers of public vehicles, as well as to various other types of employment.
In this regard, note that the Health and Safety at Work Act requires employers to take appropriate measures to prevent their employees from being exposed to hazards that could endanger their health or safety.
The Charter of Human Rights and Freedoms also provides that an insurance or annuity contract or even a retirement plan or pension insurance may contain a distinction based on age. However, it must be demonstrated that this distinction is legitimate and based on accepted actuarial data.
Diploma
Although the Charter of Human Rights and Freedoms is particularly aimed at combating prejudice, the issue of age discrimination is not as simple as it seems at first glance.
There are several exceptions that justify some form of age discrimination. However, anyone relying on a specific exception must be able to justify that their violation of the Charter of Rights and Freedoms of the Person is legitimate. And in this matter each case is an individual case and must be considered in the light of its own facts.
Ultimately, courts may have to decide whether the claimed exception is justified.
I Bernard Cliche, distinguished lawyer