Keeping older workers at home for their own safety might not be constitutional

Keeping older workers at home for their own safety might not be constitutional

When Quebec students return to classrooms later this month, not all of their teachers will be there to greet them. Quebec’s Education Minister Jean-François Roberge has said that any teacher age 60 or older should stay at home due to the heightened risk that older people appear to face from Covid-19. In Ontario, 95% of the more than 1,000 people killed by the virus have been in their sixties or above.

Although the decision to keep teachers 60 and older at home will be a relief to some of them, others may feel that they’re healthy enough to return to work and are willing to accept the small risk of getting sick from Covid-19 in exchange for getting to do a job that gives their life meaning.

Quebec has made returning optional for older teachers but the news still raises an important constitutional question: Can governments stop people over a certain age from going back to work for their own safety?

University of Toronto law and philosophy professor Sophia Moreau believes that the Charter of Rights and Freedoms, one of our foundational constitutional texts, could prevent governments from stopping older workers from returning. Section 15 (1) of the Charter states: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

Section 15(1) offers some constitutional protection against age discrimination by the government, although Moreau says relatively few age-related discrimination Charter claims have succeeded. Age discrimination claims are sometimes successful against private employers, but those are based on human rights codes, not the constitution. The lack of successful Charter challenges may be because people tend to view age discrimination as less serious than racial discrimination or gender-based discrimination, according to Moreau. However, this is one case where a claim might succeed, depending on the circumstances.

A recent decision that offers insight into the Supreme Court of Canada’s views on what constitutes discrimination is Kahkewistahaw First Nation v Taypotat. The case was brought by Louis Taypotat, a 76-year-old Indigenous man who argued that an election code created by his First Nation was discriminatory because it required elected officials to have at least Grade 12 education, which was a level he had never attained. Taypotat successfully argued that this requirement was discriminatory.

Justice Rosalie Abella, with the support of six others, wrote in her decision that laws are discriminatory under section 15(1) if they “draw discriminatory distinctions—that is, distinctions that have the effect of perpetuating arbitrary disadvantage based on an individual’s membership in an enumerated or analogous group.” She explained that “arbitrary disadvantage” arises when the “law fails to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage.”

Professor Moreau says that proving the arbitrary disadvantage might not be particularly difficult in this kind of case. “Claimants could argue that, historically, the elderly have faced considerable stigma and have been stereotyped as incapable of making decisions for themselves responsibly, (as) too frail.”

The harder part would be showing that a law keeping older people from working is not justifiable as a reasonable limit on those rights. Section 1 of the Charter allows governments to limit our rights so long as those limits are “reasonable” and “can be demonstrably justified in a free and democratic society.”

Moreau says that an older person challenging a law preventing her from going back to work will need to show “a poor fit between this particular policy and the government’s ultimate goal of minimizing the spread or protecting the elderly.” The court may find that banning all people age 60-plus from going back to work is not a reasonable limit on equality rights if they don’t see a total ban as within the range of reasonable alternative measures that the government could implement to achieve their objective.

Moreau doubts that compensating older workers forced to stay home would be enough to justify the kind of “severe isolation” that keeping older people away from work could create, especially for more disadvantaged older people whose social life may be closely connected to working or volunteering outside the home.

One reason that she believes that an age discrimination claim could succeed is that beliefs about the need to keep older workers at home may rely on the “mistaken idea that older people are disposable, that our economy can run without them, that they can just be locked up for an indefinite period of time.” Those are “precisely” the kinds of stereotypes that have led to the marginalisation of older people in the past—and that marginalization is what section 15(1) is supposed to prevent.