Ontario executives warned restructuring can mask age discrimination

Lecker & Associates says Ontario executives facing restructuring should watch for age discrimination hidden behind neutral-sounding criteria such as salary, tenure and pension eligibility. The warning matters because human rights claims can expire faster than wrongful dismissal claims, and a signed release can shut the door on both.

Why it matters: - Ontario executives can lose both severance leverage and human rights remedies if they treat a restructuring as a routine termination. - Age discrimination claims can arise even when an employer never says it wants a younger workforce. - The risk is higher for senior leaders because compensation, tenure and pension status can become indirect stand-ins for age.

What happened: - Lecker & Associates, a Toronto-based employment law firm, warned Ontario executives that being “restructured out” can hide age discrimination when selection criteria disproportionately affect older, longer-serving workers. - The warning comes amid ongoing workforce reductions across Canada’s financial, technology and public sectors. - Recent cuts cited in the release include nearly 700 job losses at Bell Canada and continued shrinkage in the federal public service.

The details: - The Ontario Human Rights Code prohibits age discrimination in employment. - The Code also recognizes adverse-effect discrimination, where a neutral practice disproportionately disadvantages people because of age. - Criteria tied to salary, tenure, pension eligibility, perceived adaptability or “future potential” can function as indirect proxies for age. - The Ontario Human Rights Commission has flagged warning signs that can separate legitimate downsizing from age-based discrimination. - Those warning signs include internal references to workforce “rejuvenation,” a much younger workforce after layoffs, and new hires into roles that were supposedly eliminated without displaced employees getting a chance to compete. - In an Ontario Human Rights Commission survey, age was the most commonly reported basis for discrimination, cited by 21% of respondents. - Among respondents age 60 and older, 23% reported age discrimination. - Bram Lecker, principal of Lecker & Associates, said restructuring is not an exemption from Ontario human rights laws and urged executives to examine the criteria used, who was retained and whether the work continued under a different title. - Executive severance can include base salary, bonuses, commissions, benefits, pension contributions, stock options and equity incentives. - Reasonable notice can extend up to 24 months in appropriate cases, depending on age, tenure, seniority and comparable job availability. - A package that looks only at base salary may undervalue what is owed. - If age discrimination contributed to the decision, additional human rights remedies may also be available. - The Human Rights Tribunal of Ontario generally requires applications within one year of the last incident of discrimination. - Late filings are accepted only in limited circumstances, typically when the delay was in good faith and would not cause substantial prejudice to the employer. - A wrongful dismissal claim in Ontario generally must be started within two years of termination. - The Tribunal can order compensation for injury to dignity, feelings and self-respect, along with changes to employer practices.

Between the lines: - The timing warning is as important as the discrimination warning. - Executives can still have time for a wrongful dismissal claim while losing the chance to file a human rights complaint if they wait too long. - That means a severance review needs to look at both money and legal deadlines at the same time. - A signed release usually blocks later claims for extra compensation or discrimination, including claims the employee did not spot right away.

What’s next: - Lecker & Associates is urging executives to review the restructuring process and severance package before signing any release. - The firm says its online severance calculator can provide an initial estimate, but possible age discrimination calls for individualized legal review. - Executives who believe age played a role should get legal advice before deciding whether to accept a package or continue negotiating.

The bottom line: - A restructuring label does not insulate an employer from Ontario human rights scrutiny, and executives who wait to act may lose their strongest claim before they realize they have one.