Nonhiring and Dismissal of Senior Workers: Is It All About the Money?

Recent studies have shown that while most employers value the experience and expertise of senior workers, many employers are unlikely to hire or retain them. It seems that cost considerations are central to their decision-making. Many employers believe that senior workers are more expensive than their younger counterparts. Facing financial difficulties and pressures to maintain market competitiveness and profitability, employers may elect to dismiss or to not hire senior workers to maximize cost savings. This paper examines whether nonhiring or dismissal of a senior worker due to cost considerations amounts to age discrimination, and if so, whether this age discrimination is justified. It first critiques the current analyses of cost considerations in age discrimination cases in the U.S., the U.K. and Canada. Unpacking the costs associated with senior workers, the paper then argues that a decision to dismiss or not to hire senior workers due to cost considerations might be motivated by inaccurate generalization and ageist stereotypes or might result in a disproportionate impact on senior workers. Furthermore, determining whether senior workers are more expensive is a complex task which requires a careful individualized assessment. Next, the paper illustrates how a ready acceptance of cost considerations in age discrimination cases significantly undermines the fundamental purposes of anti-age discrimination law. Advancing a proportionality analysis, the paper then outlines the limited circumstances in which cost considerations should be allowed. Finally, it advocates a process of procedural fairness prior to any decision to dismiss or not to hire senior workers due to cost considerations. While the paper focuses on Canadian law, its findings are of great importance to other jurisdictions.