Discrimination - Based on Aging:

Question:Can an Ontario employer legally require “youth” for employment when the job involves age-sensitive appearance?

Answer:In Ontario, age is a protected ground under the Human Rights Code, R.S.O. 1990, c. H.19, and an employer cannot use age as a reason to deny work unless they can show it fits a narrow exception, such as a “reasonable and bona fide qualification” tied to the nature of the employment under Human Rights Code, R.S.O. 1990, c. H.19 at section 24(1)(b), and they still must assess whether the requirement is genuinely necessary.   In practice, if an employer is really screening for appearance of youth rather than actual job requirements, that can create legal risk and may be challengeable through an Ontario human rights complaint.   For guidance on your specific situation and next steps, Legacy Legal Services can help legal professionals and consumers across Ontario, call (226) 246-3825.

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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.

Note: Please contact Legacy Legal Services by phone at: (226) 246-3825 to discuss any specific questions that you may have.

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.