The Duty to Accommodate Senior Workers: Its Nature, Scope and Limitations

Abstract

Canada’s labour force is increasingly relying on senior workers who are dealing with disabilities and various age-related needs which are not often accommodated. In light of these challenges, the author advocates a strong senior workers’ right to participate in the labour market. The narrow understanding of workplace age discrimination typical of current analyses fails to explain when and why age-based distinctions might be harmful, and tends to emphasize the high cost of accommodating senior workers. The result is to limit the duty to accommodate from the outset. The author examines this issue through the lens of her innovative Dignified Lives Approach to age discrimination, which centres on the argument that every person deserves to be treated with equal concern and respect at any given point in time. The five principles comprising the Dignified Lives Approach help determine when a distinction amounts to discrimination. The principles illustrate that advancing the right of senior workers to age equality includes a broad and extensive duty to accommodate their workplace needs, whether these needs stem from pre-existing disabilities or are age-related. Two key points result: first, the duty to accommodate younger workers with disabilities should apply to senior workers with disabilities; and second, the duty to accommodate senior workers should extend to accommodating their age-related needs apart from any disability. Since the duty to accommodate is already limited by the doctrine of undue hardship, there is no reason to deny accommodation. It may justifiably be limited on a case-by-case basis, but only when strong evidence of undue hardship is presented.

Keywords: age discrimination, the duty of accommodation, aging workforce, employment and labour law, disability law