I was chatting recently with a friend about someone we both know who was forced to find employment at an advanced age because of his financial circumstances. There was no doubt in our minds that our mutual acquaintance would have far preferred to spend the remaining years of his life doing something other than pounding the pavement looking for his next paycheque, but today’s economic reality is wreaking havoc with traditional views of workplace demographics.

When the last of the human rights codes across the country eliminated the upper limits on their definitions of “age”, many older workers regained human rights protection against discrimination in employment. In other words, mandatory retirement became largely illegal. When paired with a baby boomer generation that finds itself either wanting to or forced to work for economic reasons, this often creates tension in the workplace with employers wishing to pursue attrition and succession planning.

It used to be that employers were free to have the “retirement talk” with older workers, suggest the date, offer the party and perhaps a gold watch. Today, even mentioning the “r-word” can invite a human rights complaint. If the employer is singling out an employee for such a talk based on his or her age, this could mean human rights liability for the employer.

Often when we’re defending these complaints on the part of our employer clients, we hear that there have been significant performance issues with the older worker, and that the employer opted to have the “retirement talk” as a means of allowing the employee to save face and plan for a graceful exit. Unfortunately, if the reason for the discussion is based to any degree on the employee’s age, then even the talk itself could prompt human rights liability.

The simple choice of language used in these meetings can be all the evidence that an older worker needs to point to age as a motivating factor. Would you talk to a younger worker about “retirement”, “slowing down” or being “old school”? If not, even making comments like this could be considered to be evidence of age discrimination, especially if they’re made as a precursor to some negative step in the employment relationship such as a termination or demotion.

This is not to say that your older workers are with you indefinitely. Rather, it just means that it’s time to re-think how you approach the employment relationship in the long term. Declining performance can absolutely be an issue as an employee ages, or just accumulates such long service that the desire to perform optimally is long gone. Performance management is a perfectly legal practice, but it cannot be limited to older workers alone. Revisiting performance management systems and ensuring that performance management is done on a clear and consistent basis with all workers may provide employers with more options to deal with performance problems later in the employment relationship. Employers will still have to be mindful of the duty to accommodate if performance issues relate to late-onset disabilities.

Employers that are prepared to think creatively about the manner in which they offer work, such as through the use of flexible work arrangements or contracts, may similarly find that employment relationships can be modified and updated to better meet the needs of both parties.

So, while the “r-talk” may be headed out to pasture, there are still many options for the creative and open-minded employer and the older worker.

Christine Thomlinson