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MEMORANDUM

TO: Lawyer X FROM: A DATE: March 09, 2018 RE: MS. TAMERA WHITE DISCRIMINATION AT WORK.

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TERMINATION

DUE TO POTENTIAL AGE

1. Introduction Under your instruction, I have prepared this memo discussing our client Tamara’s statutory basis to bring an age discrimination claim before an Ontario Human Rights Tribunal. I have verified the established tests for assessing such a claim and the likelihood of success.

For your ease of reference, I have attached a research plan and log of the research done for this memo. The cases, laws, and regulations of this memo are up-to-date as of March 08, 2018.

2. Facts

Imagery, a small business that imports and sells modern art, terminated Tamera White (52 years old) where she worked for 21 years. Till 2007, Tamara’s works of creating visually appealing ads for newspapers, and in-store “parties were very much in demand. In 2013, Jen, Tom’s (owner of Imagery) daughter joined Imagery and made significant changes by stopping the ‘instore’ parties and terminating employees aged 45-55. By accident, Tamara read one of the emails of Jen to Tom where Jen wrote: “The 45 and older group sometimes just can’t cut it”. And on a Facebook comment where customers requested to bring back Tamara’s ‘in-store’ parties, Jen wrote “It’s not hard to guess what age group those comments come from. Some people are just so stuck in the past”. Thus, Tamara realized that she was terminated only on the ground of age discrimination, as a 25 years old employee was hired at her position immediately afterward.

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Besides, Imagery employed younger employees in place of 3 ex-employees aged between 4555.

The company started doing well with Jen’s new ideas but there was sufficient demand of Tamara’s creative works, e.g., “in-store parties”, and there was a drop in the number of older clients too. Now Tamara wants to bring an age discrimination claim against her termination.

3. Issue(s)

A. Is there any statutory provision preventing age discrimination in Ontario?

A.1 Can Jen defend Tamara’s claim under s.11 of the Human Rights Code1 of Ontario?

B. What are the tests for assessing Tamara’s age discrimination claim? How likely is it that Tamara can satisfy the test?

B1. Can Tamara establish a prima facie case of age discrimination?

B2. Can Jen provide proof that her conduct or decision did not involve a discriminatory consideration?

B3. Whether Jen’s explanation was erroneous or a pretext masking the discriminatory ground?

C. Can Tamara claim that she was not provided enough training or not given an opportunity to work in a different department that made the termination illegal?

1 Human Rights Code, RSO 1990, c H 19.

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4. Short Conclusion

A. Tamara may bring an age discrimination claim under s.5(1) Human Rights Code2 (“the Code”) that provides provision for equal treatment concerning employment without discrimination because of age in Ontario.

A1. Tamara may also claim that she was terminated only for being over 45 of age violating s.11 of the Code3 which prohibits requirement, qualification or factor results in the exclusion, restriction or preference of a group of persons.

B. Tamara may rely on a legal test to support her claim of age discrimination. Clennon v Toronto East General Hospital4 (“Clennon”) provides a three-part test for determining age discrimination. If Tamara B1) can prove a prima facie case, and B2) Jen fails to prove her conduct or decision was not discriminatory, Tamara might have a good chance of a successful claim of age discrimination provided; B3) Jen’s explanation was erroneous or a pretext masking the discriminatory ground.

C. It is likely that Tamara may successfully claim that she was not provided sufficient training and was not offered to work for a different department5 that made her termination illegal.

2 Ibid. 3 Ibid, “A right of a person ……. is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where, (a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or (b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right”. 4 2009 HRTO 1242. 5 Riddell v IBM Canada, 2009 OHRTD 1411.

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5. Discussion A. Tamara may be able to bring an age discrimination claim under Human Rights Code 6 of Ontario (“The Code”). Section 5 (1) of the Code 7 provides provision prohibiting age discrimination8. It specifies that no employer should treat its employees in a manner that is discriminating. Terminating only on the ground of being over 45 of age is a violation of the Code.

Tamara believes that Jen terminated because of her age only. Imagery terminated all employees over 45-55 and hired new employees aged between 20-25 in those positions. Also, Tamara by accident saw Jen’s email to Tom which indicates Jen’s negative mentality against people over 45 of age and shortly after that Tamara realized all the employees over 45 were either terminated or left because of unfavorable treatment because of their age. Such process of hiring only young candidates terminating older employees may violate s. 5(1) of the Code9.

It was also evident from Jen’s writing about older customers in the social media that Jen was not in awe of over middle age people and was gradually excluding the employees over 45 only for their age.

Thus, terminating all the employees over 45 and hiring young employees in those positions may go in favor of Tamara’s claim of age discrimination.

A1. Section 11 of the Code10 prohibits any requirement, qualification or factor results in the exclusion, restriction or preference of a group of persons.

6 Supra note 1. 7 Ibid. 8 “Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, color, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability”. 9 Reiss v CCH Canadian Ltd, 2013 OHRTD 783. 10 Supra note 1.

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Jen’s criteria for hiring new employees of 20-25 years old and terminating all the employees aged over 45 is likely to have violated s. 11 of the Code 11. Though, being under 25 was not an express requirement of hiring new employees but all the employees employed were of that age limit. Also, all the employees aged over 45 were terminated simultaneously.

Terminating Tamara may not appear to be clear discrimination but terminating all the employees aged between 45-55 may signify that her age was the sole factor in terminating Tamara which is not allowed under s.11 of the Code12.

Such requirement or qualification of being aged between 20-25 was not bona fide requirement either to satisfy s.11 (a) of the Code13. Imagery started doing well in the year 2013 while the previous employees were employed at Imagery. Also Tamara’s idea of ‘in-store’ parties was still high in demand when Jen decided to terminate Tamara.

Considering the process of excluding older employees and recruiting young employees, Jen might not be able to defend Tamara’s claim of age discrimination under s. 11 of the Code14.

B. Tamara may be successful in satisfying the test of discrimination against her that requires Tamara to satisfy the following three steps15:

1) establish on a balance of probabilities, a prima facie case that the prohibited ground of age discriminated her;

2) upon the presentation of a prima facie case, Jen needs to provide explanation demonstrating, on a balance of probabilities, that the disputed conduct or decision did not involve a discriminatory consideration; 11 Ibid. 12 Ibid. 13 Supra note 3. 14 Supra note 1. 15 Supra note 4.

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3) if Jen can rebut the prima facie case, the burden returns to Tamara to establish, again on the balance of probabilities, that Jen's explanation is erroneous or a pretext masking the discriminatory ground.

B1. The Supreme Court of Canada has stated that a prima facie case of discrimination "is one which covers the allegations made and which, if believed, is complete and sufficient to justify a verdict in the complainant's favor in the absence of an answer from the respondent-employer" 16. By terminating only the employees aged between 45-55 and recruiting only young employees may cover Tamara’s allegations and thus prove a prima facie case in favor of Tamara.

B2. Jen may argue that it was just a coincidence and business necessity that met together at the same time and she did not have any discriminatory criteria in terminating older employees.

B3. Tamara may counter argue by referring to Jen’s emails to Tom complaining about the older employees and customers. Tamara may also refer to Jen’s degrading comments on Facebook about the older customers in general. These statements may stop Jen from masking the discriminatory criteria towards older employees by showing the business necessity and coincident. Thus, Tamara may succeed in passing the test of age discrimination as prescribed in Clennon17.

C. Additionally, Tamara may argue that she did not receive sufficient training 18. Jen might also be held liable for not offering an alternative opportunity to Tamara19. As per the decision of Large v Stratford (City of)20, Tamara should have been given a chance to work in a different department if she was unable to cope up with the new system.

16 Supra note 4 at para 74. 17 Supra note 4. 18 Supra note 5. 19 Ibid. 20 1995, 3 SCR 733.

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Jen introduced Facebook, Twitter, and blogging which were new to all the employees and they were having difficulty in adapting to those new systems. It is true that ageing involves decline in abilities and the duty of accommodation should extend to senior workers who suffer “from an ailment, or a disadvantage linked to age” which does not amount to a disability but requires protection because of stereotyping21.

The level and length of training provided to Tamara is not apparent, and the training was conducted only once. And it is also evident that Tamara was coping with blogging very well proving her capability of dealing with the new systems but, may be needed some extra time and training which was not provided.

Hence, it is very likely that Jen failed to make an effort to accommodate Tamara by giving her additional training on the new systems or placing her to a different department that may render Tamara’s termination illegal.

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21 Malcolm Sargeant, “Older Workers and the Need for Reasonable Accommodation” (2008) 9:3 International Journal of Discrimination and the Law 163 at 176.

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TABLE OF AUTHORITIES LEGISLATION

Human Rights Code, RSO 1990, c H 19.

JURISPRUDENCE

Clennon v Toronto East General Hospital 2009 HRTO 1242. Riddell v IBM Canada, 2009 OHRTD 1411. Reiss v CCH Canadian Ltd, 2013 OHRTD 783. Large v Stratford (City of) 1995, 3 SCR 733.

SCHOLARLY ARTICLES

“The Duty to Accommodate Senior Workers: Its Nature, Scope and Limitations” (2012) 38 Queen's LJ at 165 – 208.

Malcolm Sargeant, “Older Workers and the Need for Reasonable Accommodation” (2008) 9:3 International Journal of Discrimination and the Law 163 at 176.

TEXT BOOKS Human rights in Ontario, Keene Judith, Carswell, c1992

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Avoiding Workplace Discrimination, A Guide for Employers and Employees, Harris David, Self Counsel Press, 2015 APPENDIX RESEARCH PLAN AND LOG Research Project Title: Age discrimination claim before Human Rights Tribunal in Ontario & accommodating senior workers with necessary training or alternative employment opportunity. Researcher Name/ID: AI General area/topic of law: Family Law Common Law?☒ Civil Law? ☐ Public? ☐ Jurisdiction: Federal? ☐ Issue 1: Ontario?

Private? ☒

Provincial? ☒ Municipal? ☐ International/foreign? ☐

Can Tamara bring an age discrimination claim before Human Rights Tribunal in

Legislation? ☒ Judicial Decisions? ☒ Unknown? ☒ Plan Log Legal Information Sources to check Checked Findings (append results to Required on date? document) (if additional questions are raised in the course of research, add them to column 1) Secondary sources Lexisnexis-Quicklaw ound article “The duty to on the age Accommodate Senior Workers: Its discrimination at Nature, Scope and Limitations” workplace (2012), 38 Queen's LJ 165 – 208. Legislation https://www.ontario.ca/laws earched Ontario e-laws with the regarding “Human term “Age Discrimination Rights in Ontario” Employment” and found Human Rights Code Ontario Case law on Lexisnexis-Quicklaw n the judgment of Riddell v IBM accommodating Canada appropriate training for senior workers with elderly employees was necessary training recommended. Case Laws on Lexisnexis-Quicklaw ound Large v Stratford (City of). alternative employment opportunity to the elderly employees in Ontario

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Issue 2: Test for assessing Tamara’s claim for age discrimination Legislation? ☒ Judicial Decisions? ☒ Unknown? ☒ Plan Log Legal Sources to Checked Findings (append results to document) (if Information check on date? additional questions are raised in the course Required of research, add them to column 1) Lexisnexisound article “The duty to accommodate Secondary Quicklaw senior workers: its nature, scope and sources on the limitations” (2012), 38 Queen's LJ 165 - 208 age discrimination at workplace ound LexisnexisCase law on Reiss v CCH Canadian Ltd necessary test for Quicklaw employers in relation to age discrimination

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Issue 3: Whether Jen was liable for failing to accommodate senior workers at Imagery, with necessary training? Could Jen be held liable for not providing suitable alternative employment opportunity to the elderly employees?

Legislation? ☒ Judicial Decisions? ☒ Unknown? ☒ Plan Log Legal Sources to Checked Findings (append results to document) (if Information check on date? additional questions are raised in the course Required of research, add them to column 1) Case law on Lexisnexisound Riddel v IBM training of senior Quicklaw employees ound Journal article by Malcolm Sargeant, Secondary WestlawNext “Older Workers and the Need for Reasonable resources search Canada Accommodation” (2008) 9:3 International Journal on training of of Discrimination and the Law 163 at 176. older employees

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