By: Stephanie McDonald and Baljinder (Bal) Singh Tiwana
Older employees bring a wealth of experience, skill, and loyalty. Yet, all too often, they’re the first to face workplace discrimination—and the first to be dismissed. Why? Many employers prefer to replace them with younger, lower-paid staff.
However, instead of employers risking legal exposure through outright terminations, employers often rely on subtle, strategic tactics, to force older workers out. These moves are often calculated, aggressive, and masked in vague corporate language like “restructuring” or “realignment.” In real terms, often age-based discrimination is occurring.
Beyond the legal implications, the emotional and financial impact can be devastating. Older workers face longer job searches, persistent age bias in hiring, and the stress of starting over later in life. Yet employers who engage in these practices often show little compassion.
This article will help you recognize the warning signs and show you what you can do if you’re being pushed out from an organization.
What is Constructive Dismissal?
Constructive dismissal occurs when an employer substantially and unilaterally changes a fundamental term of your employment agreement without your implied or express consent. This could make continued employment unworkable, forcing the employee to claim that their employment has been constructively terminated.
Common Tactics Employers Use to Push Out Older Workers
1. Early Retirement Pressure (a common tactic)
Employers may frame early retirement as “voluntary” while pressuring employees to accept low-ball severance packages. Despite years—sometimes decades—of service, older employees are often pressured under tight deadlines. The goal: make you feel trapped and powerless. But make no mistake—it’s not fair, and in many cases, it’s not legal.
2. Subtle Excuses Like “Restructuring”
Words like “company restructuring” or “realignment” are often used to disguise the true motive(s) behind a termination.
If your employer is dishonest about their motives, the courts may even award additional compensation (aggravated damages) in a legal claim.
3. “You’re Struggling with New Technology”
Employers may falsely claim that older employees can’t adapt to new technology—even when proper training was never provided. This narrative is often used to justify demotions or terminations.
4. Demotions
Some older workers are reassigned to lower positions, inconvenient shifts, or roles beneath their skill level. The intent? To frustrate you into quitting
5. Reassigning Roles
Downgrading responsibilities under the pretext of “realignment” is a common tactic to reduce job satisfaction without formally firing someone
6. Undermining Performance or Value
Employers may start excluding you from key meetings, assigning menial tasks, or issuing baseless negative performance reviews. These tactics aim to damage self-esteem and confidence, pushing the employee towards resignation
7. Creating a Hostile or Isolating Environment
Being left out, micromanaged, or denied training opportunities are all red flags. These changes are often part of a bigger plan to encourage you to walk away
Employer’s Legal Duties Under Ontario Law
Duty to Accommodate Age-Related Needs
Under the Ontario Human Rights Code, employers must accommodate older workers—particularly when it comes to workplace technology—to the point of undue hardship. That includes providing proper training, support, and time to adapt. Age is not a valid reason to terminate employment, and employers should foster a culture of learning.
Duty to Avoid Age Discrimination
Employers cannot fire, demote, or exclude someone based solely on their age. They must assess employees based on their merit, not their age. Terms like “overqualified” or “not a cultural fit” may seem innocent, but they often hide discriminatory intent.
In rare cases, an age-based requirement may be allowed if it qualifies as a Bona Fide Occupational Requirement (BFOR)—meaning it’s essential to the job performance. But these cases are the exception, not the rule.
Age and Reasonable Notice: What Are You Owed?
If you are terminated—constructively or otherwise—you may be entitled to reasonable notice and/or severance pay.
Courts consider several factors when determining what’s “reasonable,” known as the Bardal factors including:
- Age
- Length of service
- Nature of your role
- Availability of similar jobs
- Impact of age
Older workers often receive more notice or severance because they typically take longer to find comparable work and generally find it more challenging to find new employment. The law recognizes this and will generally award a longer notice period, although each case is determined on a case-by-case basis.
What to Do if You’re Being Pushed Out
If you suspect you’re being forced out:
- Document everything: Keep records of meetings, emails, changes to your role, and any conversations that seem suspicious or discriminatory
- Don’t sign anything under pressure: Severance offers are negotiable. Don’t be rushed into accepting less than you deserve
- Seek legal advice: Consult an employment lawyer before making any decisions. A professional can assess whether you’ve been constructively dismissed and help you fight for fair compensation
- Raise your concerns: You can bring concerns to HR or speak with legal counsel. The earlier you act, the better positioned you are to protect your rights
Conclusion
Being pushed out because of your age is not just unfair—it’s often unlawful. If you’re being targeted, know your rights, trust your instincts, and don’t stay silent. Whether it’s a forced resignation or an unfair severance offer, you don’t have to accept it.
Need legal guidance? Contact Workplace Sage Legal. We’re here to help you stand up for your rights and get the fair treatment you deserve.
DISCLAIMER: This article/blog is provided for educational/informational purposes only. The views expressed are solely those of the author(s) and should not be attributed to any other party not listed as the author(s).
While reasonable efforts have been made to ensure the accuracy of the content provided, it does not constitute legal advice. Prior to relying on any aspect of this article, you should consult with a suitably qualified legal professional promptly in your relevant jurisdiction, to obtain advice tailored to your individual circumstances
Nothing in this article should be interpreted as forming a solicitor-client relationship or construed as a solicitation for legal services.
