Discrimination - Based on Aging:

Question:Can an employer in Ontario legally use youth or age appearance requirements in hiring or keeping an employee?

Answer:In Ontario, age-based treatment is generally protected under the Human Rights Code, R.S.O. 1990, c. H.19, including the employment equality right in section 5(1)   However, a limited exception can permit age discrimination if it is a reasonable and bona fide qualification because of the nature of the employment under section 24(1)(b)   If an employer claims an age or “youthful appearance” requirement (for example, affecting sex appeal) it must be genuinely connected to the job’s nature, not just preference, and the facts matter a lot   If you need help assessing your situation or building a compliant response plan, Marketing.Legal™ can help with digital marketing for lawyers, paralegals, and more in Ontario; call (800) 551-5751 to get started.

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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.

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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:

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:

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.