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The Unequal Right to Age Equality: Towards a Dignified Lives Approach to Age Discrimination

Published online by Cambridge University Press:  20 July 2015

Pnina Alon-Shenker
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This paper critically examines prevailing egalitarian theories (which assess inequality between two individuals on the basis of their lifetime experience). The paper proposes an alternative theoretical framework: the Dignified Lives Approach. This theoretical framework, which rests on deontological foundations, considers all human beings as of equal moral worth, and advocates treating each individual with equal concern and respect at any given time. The paper articulates five essential principles of equality founded in the notion of equal concern and respect: the principle of individual assessment, the principle of equal influence, the principle of sufficiency, the principle of social inclusion, and the principle of autonomy. Focusing on senior workers, the paper reveals that age discrimination may be as unjust as other forms of discrimination. It therefore articulates a strong, moral case for eradicating age discrimination which is well supported by recent judicial developments.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 25 , Issue 2 , July 2012 , pp. 243 - 282
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Copyright © Canadian Journal of Law and Jurisprudence 2012

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References

I would like to thank Patrick Macklem, Morley Gunderson and Sophia Reibertanz Moreau for their guidance and encouragement throughout my doctoral work, and Sir Bob Hepple and Brian Langille for their insightful comments. I am also grateful to Margaret Annice Blair for excellent research assistance.

1. See, e.g., Thompson, Sue, Age Discrimination: Theory into Practice (Dorset, UK: Russell House Publishing, 2005) at 1–2 Google Scholar; Fredman, Sandra & Spencer, Sarah, “Introduction” in Fredman, Sandra & Spencer, Sarah, eds, Age as an Equality Issue (Oxford: Hart, 2003) 1 at 1Google Scholar; and Gillin, CT (Terry) & Klassen, Thomas R, “The Shifting Judicial Foundation of Legalized Age Discrimination” in Gillin, CT (Terry), MacGregor, David & Klassen, Thomas R, eds, Time’s up!: Mandatory Retirement in Canada (Toronto, ON: James Lorimer, 2005) 45 Google Scholar (who argue that in McKinney (infra note 39) the Supreme Court rationalized discrimination with a socio-economic argument and that since then, socio-economic considerations, which were once denied, are widely acceptable in age discrimination cases).

2. Although I prefer the expression ‘people at advanced age’, for the sake of convenience, I will use the term ‘senior’, while avoiding terms such as ‘old’ and ‘elderly’ as much as possible due to their negative connotations. Note that the term ‘senior’ is not used here to suggest workplace hierarchy.

3. Québec, Gosselin v (Attorney General), [2002] 4 SCR 429 at para 31 (McLachlin CJ)Google Scholar.

4. For empirical evidence on the prevalence and severity of age discrimination especially in the employment setting see, for example, Eglit, Howard C, “The Age Discrimination in Employment Act at Thirty: Where It’s Been, Where It Is Today, Where It’s Going” (1997) 31 U Rich L Rev 579 Google Scholar; Bennington, Lynne, “Age and Carer Discrimination in the Recruitment Process: Has the Australian Legislation Failed?” in Noon, Mike & Ogbonna, Emmanuel, eds, Equality, Diversity and Disadvantage in Employment (Houndmills, UK: Palgrave, 2001) 65.CrossRefGoogle Scholar

5. In Canada, see Aging and Employment Policies: Canada (Paris: OECD, 2005) at 109-11, online: http://www.oecd.org/dataoecd/17/50/35380923.pdf.

6. Contingent work, including temporary, part-time work, independent contracting, involuntarily self-employment, and casual work, is very common among senior people. Many workers are therefore not regarded as ‘employees’ and are not protected by employment law including anti-age discrimination legislation (see Eglit, supra note 4 at 702-05). For empirical evidence from Canada, see Marshall, Katherine & Ferrao, Vincent, “Participation of Older Workers” (2007) 8:8 Perspectives on Labour and Income 5 at 8-9, online: http://www.statcan.gc.ca/pub/75-001-x/75-001-x2007108-eng.pdf Google Scholar; Supporting and Engaging Older Workers in the New Economy— Report by the Expert Panel on Older Workers (Ottawa, ON: Human Resources and Social Development Canada, 2008) at 6, online: http://www.hrsdc.gc.ca/en/publications_resources/lmp/eow/2008/older_workers_2008.pdf Google Scholar.

7. See Ageing and Employment Policies: Live Longer, Work Longer (Paris: OECD, 2006) at 34–39, online: http://www.oecd-ilibrary.org/employment/live-longer-work-longer_9789264035881-en Google Scholar; Heidkamp, Maria, Corre, Nicole & Horn, Carl E Van, “The ‘New Unemployables’: Older Job Seekers Struggle to Find Work During the Great Recession”, The Sloan Centre on Aging & Work, Boston College, Issue Brief 25 (November 2010), online: http://www.bc.edu/con-tent/dam/fles/research_sites/agingandwork/pdf/publications/IB25_NewUnemployed.pdf Google Scholar; Bisom-Rapp, Susan, Frazer, Andrew D & Sargeant, Malcolm, “Decent Work, Older Workers, and Vulnerability in the Economic Recession: A Comparative Study of Australia, the United Kingdom, and the United States” (2011) 15:1 Employee Rights and Employment Policy Journal 43 at 48–50, online: http://ssrn.com/abstract=1699447 Google Scholar (the global economic crisis had significant impact on the quality of work for senior workers in the UK, the US and Australia— for many of them work became more fragile, inconstant and insecure—and on their ability to plan for and secure a dignified retirement).

8. See text accompanying infra notes 17-19.

9. McKerlie, Dennis, “Justice between Neighboring Generations” in Cohen, Lee M, ed, Justice Across Generations: What Does It Mean? (Washington, DC: American Association of Retired Persons, 1993) 215 Google Scholar [McKerlie, “Justice”].

10. See Parts B2 and B3.

11. Sandra Fredman, “The Age of Equality” in Fredman & Spencer, supra note 1 [Fredman, “Age”].

12. These scholars have undertaken to give the concept of equality substantive content by identifying several principles that equality aims to protect. Compromising these principles, so it is argued, amounts to wrongful discrimination. While some define discrimination narrowly or advocate one idea for all cases of discrimination, others take a pluralistic approach that offers several ways of understanding discrimination. See, e.g., Anderson, Elizabeth S, “What is the Point of Equality” (1999) 109:2 Ethics 287 (the ultimate concern of equality is to end oppression)CrossRefGoogle Scholar; Frankfurt, Harry, The Importance of What We Care About: Philosophical Essays (Cambridge: Cambridge University Press, 1988) at 134 CrossRefGoogle Scholarff (the moral problem with inequality cases is that A has too little, or less than enough); Greschner, Donna, “The Purpose of Canadian Equality Rights” (2002) 6:2 Rev Const Stud 291 (the main purpose of equality is to protect the interest of belonging and not to exclude members of protected groups from the benefits of full membership in social, economic, and political life)Google Scholar; Moreau, Sophia R, “The Wrongs of Unequal Treatment” (2004) 54:3 UTLJ 291 CrossRefGoogle Scholar (unequal treatment is wrong when it is associated with stereotyping and prejudice, oppression, and denial of basic goods); Rawls, John, Justice as Fairness: A Restatement, Kelly, Erin, ed (Cambridge, MA: Harvard University Press, 2001) at 130–31 Google Scholar (who identifies several reasons for regulating social and economic inequalities, including hardship, hunger and oppression); Réaume, Denise, “Discrimination and Dignity” (2003) 63:3 La L Rev 645 Google Scholar [Réaume, “Discrimination”] (who articulates three forms of indignity associated with discrimination: prejudice, stereotyping, and exclusion from benefits that are significant for a life with dignity); Réaume, Denise G, “Harm and Fault in Discrimination Law: The Transition from Intentional to Adverse Effect Discrimination” (2001) 2:1 Theor Inq L 349 Google Scholar [Réaume, “Harm”] (the harms that are associated with discrimination in the private sector are implicit or explicit conduct motivated by stereotypes or prejudice, or by a denial of a fair opportunity to participate in important activities and social institutions); Scanlon, TM, The Difficulty of Tolerance (Cambridge: Cambridge University Press, 2003) at 202ffCrossRefGoogle Scholar (who articulates five diverse reasons for eliminating inequality, including alleviation of suffering, prevention of unacceptable forms of power or domination, and elimination of stigmatizing differences in status); and Young, Iris Marion, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990)Google Scholar (who focuses on the concepts of domination and oppression).

13. I use the term ‘resource’ as the subject of equality out of convenience. I do not intend to delve into the question of ‘equality of what’ (whether, for example, it is ‘basic goods’, ‘resources’ or ‘capabilities to achieve functioning’ according to Rawls, Dworkin, and Sen respectively). However, it is evident that the Dignified Lives Approach developed in this paper extends beyond equal distribution of basic means. See Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971)Google Scholar; Dworkin, Ronald, “What is Equality? Part 2: Equality of Resources” (1981) 10:4 Phil Pub Affairs 283 Google Scholar; and Sen, Amartya, Inequality Reexamined (Cambridge, MA: Harvard University Press, 1992).Google Scholar

14. See supra notes 11-12.

15. I use the term ‘unequal treatment based on age’ for both direct and adverse effect age discrimination.

16. However, it should be clear from the outset that when one of the five principles of equality is not respected, age discrimination may still be justified when striking a balance between the right of an individual to age equality and competing rights and interests of other people or society as a whole. That is, although this paper argues that the right to age equality is more important than what we used to think, sometimes this right may be trumped by other rights and interests. Since the right to age equality is important and its violation significant, especially when senior workers are concerned, compelling reasons should be presented to justify its violation. When the principles of equality are not respected to a great extent and the harm cannot be mitigated, counter-considerations should not prevail except in rare cases of necessity. A less strict standard of review such as rational connection may be sufficient in other cases, where the principles of equality are not severely compromised.

17. Nagel, Thomas, Equality and Partiality (New York: Oxford University Press, 1991) at 69.Google Scholar

18. Rawls, supra note 12 at 59.

19. Dworkin, supra note 13 at 304-05.

20. McKerlie, “Justice”, supra note 9 at 215-17.

21. McKerlie, Dennis, “Equality between Age-Groups” (1992) 21:3 Phil Pub Affairs 275 at 276-78Google ScholarPubMed [McKerlie, “Equality”].

22. Ibid at 277.

23. Let us look at this example:

According to the Complete Lives Approach, the distinction in Time III is insignificant because Person B (the young) and Person A (the senior) receive benefits and bear burdens equally over a lifetime.

24. See, e.g., Wedeking, Gary A, “Is Mandatory Retirement Unfair Age Discrimination?” (1990) 20:3 Can J Phil 321 at 328CrossRefGoogle Scholar.

25. As was illustrated in supra note 23. See McKerlie, “Equality”, supra note 21 at 281. See also Temkin, Larry S, Inequality (Oxford: Oxford University Press, 1993) at ch 8Google Scholar. Due to these objections, McKerlie developed an alternative theory: a priority principle which applies within temporal stages of lives (see text accompanying infra notes 134-36).

26. Indeed, this inequality may be dealt with by facilitating, for example, progressive tax and providing different allowances through welfare institutions. However, as will be further explained, inequality does not solely revolve around the denial of economic opportunities to members of disadvantaged groups. It also, and most importantly, leads to their social exclusion from numerous spheres including employment, health care, education and housing. It also reinforces stereotypes about them, perpetuates their oppression, and negatively affects their exercise of free choice and autonomy.

27. This difficulty is intensified when age-based distinctions occur in earlier stages of lives, for example, when most resources are confined to people under 40 and those over 40 are left with very little, or when life expectancy increases dramatically, and many people are considered ‘outsiders’ for more than twenty years of living.

28. For more difficulties see, for example, Fredman, “Age”, supra note 11 at 38) who argues that it is wrong to compare the complete lives of two individuals as the same burden or benefit might affect them differently even if they experience it at the same age, due to cultural differences between generations.

29. Let us take for example two situations.

30. This problem is distinguished from the problem of justice between birth cohorts or justice between generations. Rawls, for example, tackled this problem by utilizing a just savings principle (supra note 12 at 160).

31. Daniels, Norman, Am I my Parents’ Keeper?: An Essay on Justice between the Young and the Old (New York: Oxford University Press, 1988) at 40–42 Google Scholar. Focusing on the employment context, Daniels argues that there are circumstances in which age becomes morally relevant to job placement, as for example where restrictions on senior workers’ access to jobs serves to improve younger workers’ opportunities to obtain employment (ibid at 98-100).

32. Ibid at ch 3. Similarly to Rawls’ idea of ‘veil of ignorance’, Daniels ‘prudent agents’ do not know much about themselves, including their age and how long they will live. In addition, they have no conception of what is good except in terms of primary social goods.

33. See McKerlie, “Equality”, supra note 21 at 283-84; McKerlie, Dennis, “Justice between the Young and the Old” (2001) 30:2 Phil Pub Affairs 152 at 158CrossRefGoogle Scholar [McKerlie, “Young”].

34. In Daniels’ words: “unequal treatment of people by age appears to be budgeting within a life … It is rational and prudent that a person take from one stage of his or her life to give to another in order to make his or her life as a whole better.… When considered part of a prudent lifetime plan, differential treatment of people by age still involves treating them equally over their whole lives” (Norman Daniels, “The Prudential Lifespan Account of Justice between Generations” in Cohen, supra note 9 at 200 [emphasis added]).

35. Indeed, Daniels argues that prudent agents assume that they will live through all stages of distribution. However, as McKerlie clarifies, this means that their entire lives will be lived under the distribution, and not that they will actually reach all of possible ages (McKerlie, “Equality”, supra note 21 at n 16).

36. Daniels, supra note 31 at 90.

37. See McKerlie, “Equality”, supra note 21 at 281-88; McKerlie, “Young”, supra note 33 at 159-61. The fact that prudent agents are not time neutral is well illustrated by Daniels own observation that, even without the knowledge of our conceptions of what is good in life, “we know enough about the frequencies of disease and disability as we age to know that years late in life, say after age 75, are far more likely than earlier years to involve some forms of impairment This knowledge suggests that it would be imprudent to count the expected payoff of years late in life quite as highly as the expected payoff of years more likely to be free of physical and mental impairment” (Daniels, supra note 31 at 89-90).

38. See Daniels, supra note 31 at 18.

39. See, e.g., McKinney v University of Guelph, [1990] 3 SCR 229 at 294-95Google ScholarPubMed.

40. Using panel data of twenty-two OECD countries over the time period 1960-2004, a recent study examines the extent to which employment of people aged 55-64 affects the employment of people aged 16-24 and 25-54. It finds no empirical support for the assumption that employment of the young and the senior are substitutes thus refuting the concern that delayed retirement has adverse effects on youth employment. There is even some evidence that they complement each other. That is, increased employment of senior workers (aged 55-64) may have small positive effects on employment of people aged 16-24 and 25-54 ( Kalwij, Adriaan S, Kapteyn, Arie & Vos, Klaas De, “Early Retirement and Employment of the Young” RAND Working Paper Series No WR-679 (March 2009), online: http://papers.ssrn.com/sol3/paperscfm?abstract_id=1371889) Google Scholar.

41. See Jonathan R Kesselman, “Challenging the Economic Assumptions of Mandatory Retirement” in Gillin et al, supra note 1 at 170-71.

42. Adler assumes that the “currency” for equality is human well-being “encompassing a range of objective goods or aspects of human flourishing, and not merely preference satisfaction” ( Adler, Matthew D, “Well-Being, Inequality and Time: The Time-Slice Problem and its Policy Implications” University of Pennsylvania, Institution for Law & Economy Research Paper No 07-17; University of Pennsylvania Law School, Public Law Research Paper No 07-30 (August 13, 2007) at 1-2, online: http://ssrn.com/abstract=1006871) Google Scholar.

43. This means that each human is a single person, from birth to death. By contrast, Parfit argues that we should view different parts of life as different lives, and people as holding multiple identities during their lives. Parfit therefore maintains that compensation across different stages of one life over time is not always possible ( Parfit, Derek, Reasons and Persons (Oxford: Clarendon Press, 1984) at 337 Google Scholar [Parfit, Reasons]; Parfit, Derek, “Comments” (1986) 96 Ethics 832 at 869-70CrossRefGoogle Scholar [Parfit, “Comments”]).

44. Adler, supra note 42 at 16-17.

45. Ibid at 59.

46. Ibid at 14.

47. Ibid at 20; see also 21-22, 26. For example:

According to Adler, we should help Person A, but the justification comes from a lifetime perspective. A’s total well-being is not 31. It is much less because of the harmful experience he or she had at time III. In Adler’s words: “The strongly negative effect in that period may “ruin” that whole life” (ibid at 26).

48. See also Adler’s recent book which further develops the idea of social welfare functions as a framework for policy analysis ( Adler, Matthew D, Well-Being and Fair Distribution: Beyond Cost-Benefit Analysis (Oxford: Oxford University Press, 2011))CrossRefGoogle Scholar. Chapter 6 defends the notion of interpersonal comparisons between lifetime well-being of individuals. However, it provides a softened approach to sub-lifetime considerations. In a nutshell, Adler’s approach approves helping those who are worse off now (even when they are better off in lifetime terms) if this produces “a greater increase in the lifetime well-being of the transferee than the loss in lifetime well-being of the transferor” (ibid at 471).

49. See Cupit, Geoffrey, “Justice, Age, and Veneration” (1998) 108:4 Ethics 702 at 703-04, 708CrossRefGoogle Scholar. See also Feinberg, Joel, “Noncomparative Justice” (1974) 83:3 Phil Rev 297 at 298-300Google Scholar (Feinberg distinguishes between principles of justice which involve comparisons between different individuals and those which do not. Non-comparative injustices include cases of unfair punishments and rewards, merit grading, and derogatory judgments). Derek Parfit also distinguishes between comparative and non-comparative justice (“Whether people are unjustly treated, in this comparative sense, depends on whether they are treated differently from other people.… Another kind of justice is concerned with treating people as they deserve.… Whether people are unjustly treated, in this sense, depends only on facts about them. It is irrelevant whether others are treated differently”) ( Parfit, Derek, “Equality or Priority?”, The Lindley Lecture, University of Kansas, November 21, 1991 (Department of Philosophy, University of Kansas, 1995) at 3-4 [Parfit, “Priority”])Google Scholar.

50. See Young, supra note 12, who challenges contemporary theories of justice that are dominated by a distributive paradigm. Instead of focusing on distribution, so she argues, a conception of justice should begin with the concepts of domination and oppression.

51. For example, mandatory retirement is wrong not because one individual is entitled to a benefit (a job) while the other is not, but rather because it involves some wrongs such as perpetuating stereotypes and oppression and excluding senior workers from active social lives.

52. Let us look back at the example in supra note 23. According to the Dignified Lives Approach, Person A is treated wrongfully at Time III, not because Person B is getting more, but rather because, for example, Person A was treated on the basis of stereotype or prejudice or was denied access to minimum conditions of living, regardless of Person B’s situation and no matter what Person A got in the past or will get in the future.

53. Fredman, “Age”, supra note 11 at 56, 59. Fredman criticizes the language of the EU Directive (establishing a general framework for equal treatment in employment and occupation, European Union Council Directive 2000/78/EC of 27 November 2000, OJ L303 at 16-22) which defines direct discrimination as one that occurs “where one person is treated less favourably than another is has been or would be treated in a comparable situation on [grounds of age]” (ibid at 55). She argues that since age is a “process rather than a fixed quality” it is not clear how much of an age difference is required between the plaintiff and the comparator (ibid at 55; see 38-39, 55-56). See also Bob Hepple QC, “Age Discrimination in Employment: Implementing the Framework Directive 2000/78/EC” in Fredman & Spencer, supra note 1 at 82.

54. Fredman, “Age”, supra note 11 at 38, 43-46.

55. Kant, Immanuel, Groundwork for the Metaphysics of Morals, translated by Ellington, James W (Indianapolis, ID: Hackett, 1993), section II, 435-36Google Scholar. Drawing on Rawls’ theory of justice, Dworkin considers equal concern and respect to be the most fundamental of political rights ( Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977) at 181, 272-73Google Scholar [Dworkin, Taking]). Will Kymlicka defines the abstract and fundamental idea of equal concern and respect (which, unlike equal distribution of income, can be interpreted in various ways) as an “egalitarian plateau”; “the heart of all plausible political theories” ( Kymlicka, Will, Contemporary Political Philosophy: An Introduction (Oxford: Clarendon Press, 1990) at 5 Google Scholar). Note however that Dworkin’s interpretation of equal concern and respect is different from the one proposed here. His idea of equality of resources as the best account of ‘treatment as an equal’ takes a complete lives approach. It assesses inequalities based on a lifetime’s accumulated resources (see supra note 19). Furthermore, it is based on a comparison between individuals. That is, distribution of resources is considered unjust if a person envies someone else’s bundle of resources ( Dworkin, Ronald, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, MA: Harvard University Press, 2000) at ch 2 [Dworkin, Sovereign])Google Scholar.

56. Fredman, “Age”, supra note 11 at 45.

57. For example, it is argued that mandatory retirement protects the dignity of senior workers as it provides them with a dignified exit from the labour market and avoids constant monitoring and evaluation of workers’ performance. It is also argued that individual evaluation best promotes the dignity of workers because it assesses them on their own traits, whereas mandatory retirement is based on ageist stereotypes.

58. The aim of the EU Directive is, for example, to ensure respect for human dignity by protecting the right to equal treatment and enhancing the ability of all age groups to participate in employment and employment-related activities (supra note 53, Recitals 4-6 of the Preamble).

59. See Moreau, supra note 12 at 312-13.

60. See R v Kapp, 2008 SCC 41 at paras 21-24. See also para 37: “… The focus of s 15(1) is on preventing governments from making distinctions based on enumerated or analogous grounds that have the effect of perpetuating disadvantage or prejudice or imposing disadvantage on the basis of stereotyping.”

61. The Court interprets disadvantage as “vulnerability, prejudice and negative social characterization” (ibid at para 55).

62. See supra note 12.

63. As will be argued later, the wrongdoer may try to justify the unequal treatment by presenting competing interests and rights which should be balanced against the victim’s right to equality.

64. Supra note 47.

65. The comparator requirement is one of the more widely-criticized elements in discrimination law. Moreau, for example, argues that to view equality as a comparative concept is mistaken and dangerous as it might overlook wrongful forms of discrimination. She distinguishes between a general right to equal treatment, which is inherently comparative, and an anti-discrimination right which may be interpreted as a right not to be denied benefits or subjected to burdens in circumstances where this amounts to discrimination, which is not essentially comparative. She then maintains that while some forms of discrimination entail comparative dimensions, others do not. That is, sometimes discrimination is objectionable not because some people were treated unfairly relatively to others, but because the treatment was unfair in and of itself ( Moreau, Sophia Reibetanz, “Equality Rights and the Relevance of Comparator Groups” (2006) 5 JL & Equality 81 Google Scholar). See also Goldberg, Suzanne B, “Discrimination by Comparison” Columbia Law School Public Law & Legal Theory Working Paper Group No 10-231, online: http://lsr.nellco.org/columbia_pllt/9185/. Google Scholar

66. According to Temkin, an egalitarian is someone who “attaches some value to equality itself“. That is, someone who “cares at all about equality over and above the extent it promotes other ideals“ (supra note 25 at 7).

67. Compare Westen, Peter, Speaking of Equality: An Analysis of the Rhetorical Force of ‘Equality’ in Moral and Legal Discourse (Princeton, NJ: Princeton University Press, 1990) at 73–74, n 22CrossRefGoogle Scholar; and Hart, HLA, “Between Utility and Rights” (1979) 79:5 Colum L Rev 828 at 845CrossRefGoogle Scholar (“The evil is the denial of liberty or respect; not equal liberty or equal respect: and what is deplorable is the ill-treatment of the victims and not the relational matter of the unfairness of their treatment compared with others”).

68. Similarly, Scanlon’s reasons for eliminating inequality are not essentially egalitarian (supra note 12). But Scanlon does not mean “to attack equality or to “unmask” it as a false ideal” (ibid at 203) as was done by Westen, Peter in “The Empty Idea of Equality” (1982) 95:3 Harv L Rev 537 CrossRefGoogle Scholar. As Greenawalt argues, substantive principles of equality sometimes rest on fundamental values that are non-egalitarian. The principles of equality can be grounded in non-egalitarian norms and vice versa ( Greenawalt, Kent, “How Empty is the Idea of Equality” (1983) 83:5 Colum L Rev 1167 at 1183)CrossRefGoogle Scholar.

69. See Moreau, supra note 12 at 317-18.

70. According to Raz, some principles of equality are designed to promote equality as such (“strictly egalitarian”), while others generate equality as an incidental by-product. Furthermore, some principles are expressed using ‘equality’ or related terms but have nothing to do with egalitarianism. Arguments and claims that invoke equality but do not rely on strictly egalitarian principle are termed “rhetorical” ( Raz, Joseph, The Morality of Freedom (Oxford: St Martin’s Press, 1986) at 226–29)Google Scholar. “They are not designed to increase equality but to encourage recognition that the well-being of all human beings counts” (ibid at 228). Poverty is bad in all societies to the same degree and for the same reasons. It does not matter if only some or all members are poor. “The wrong is poverty and its attendant suffering and degradation, not the inequality. But the inequality is an indication that there may be resources which can be used to remedy the situation. It is relevant to an argument about what can be done, as well as to arguments about responsibility for not doing enough to reduce the poverty” (ibid at 229).

71. Some private actors such as employers are distributors of certain goods comparable to the State. According to Réaume, anti-discrimination law should be understood as protecting the fundamental interest of human dignity which is associated with fair access to important opportunities and due consideration of the needs and interests of different groups in the design of important social institutions. Liability of employers not only to refrain from discrimination but also to actively promote equality stems from the harm done to the equal moral worth of workers by discrimination, whether it was intentional or not (Réaume, “Harm”, supra note 12).

72. See Moreau, Sophia, “What is Discrimination?” (2010) 38:2 Phil Pub Affairs 143 at 145-47CrossRefGoogle Scholar.

73. Intent is not an essential component of discrimination but it may aggravate the harm to human dignity associated with discrimination (see Réaume, “Harm”, supra note 12 at 358-60, 363-65, 369).

74. As Réaume argues, “there are ways of restricting self-fulfllment that are themselves sufficiently harmful to constitute a violation of dignity, even absent an underpinning in prejudice or stereotype” (Réaume, “Discrimination”, supra note 12 at 673-74).

75. As Réaume argues, the interest in fair access to opportunities as an aspect of human dignity is sufficiently important to warrant the imposition of obligations on employers to accommodate at least some differences between individuals (Réaume, “Harm”, supra note 12 at 380). Moreau argues that the interest that is injured by discrimination is our interest in a set of deliberative freedoms “to have our decisions about how to live insulated from the effects of normatively extraneous features of us, such as our skin color or gender” and that “victims of discrimination have been denied an equal set of deliberative freedoms” (Moreau, supra note 72 at 147, 157).

76. According to John Gardner, once one enters a quasi-public sphere, one is an “agent of distributive justice” (which others might view as the state’s exclusive responsibility) ( Gardner, John, “Discrimination as Injustice” (1996) 16:3 Oxford J Legal Stud 353 at 365)CrossRefGoogle Scholar. This view portrays discrimination law as closer to tort law (strict liability) than to criminal law (strong fault). Individuals and institutions are recognized as discriminators because they are in a good position to distribute goods or services and therefore have a duty of fair distribution. In the employment context, employers are “agents of distributive justice” because, as the distributors of employment opportunities among “the opportunity-advantaged” and “the opportunity-disadvantaged”, they are specifically well-placed to repair distributive injustice (ibid at 363). No fault is involved but they are still obliged to rectify discrimination (ibid; and Gardner, John, “Liberals and Unlawful Discrimination” (1989) 9:1 Oxford J Legal Stud 1 at 11)CrossRefGoogle Scholar. See also Fredman, “Age”, supra note 11 at 62. Finally, see Hepple, Bob, Coussey, Mary & Choudhury, Tufyal, Equality: A New Framework, Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation (Oxford: Hart, 2000) at 32 Google Scholar). This thought-provoking report advances a so-called fourth generation anti-discrimination law which is enhanced by positive obligations to promote equality as opposed to a sole reliance on a negative obligation to refrain from discrimination (ibid at 34-35). It suggests, among other things, imposing positive duties on public authorities (ibid at 61-65) and on public and private employers of more than ten full-time employees. These duties would be limited by the undue hardship doctrine (ibid at 71-72).

77. See Fredman, “Age”, supra note 11 at 62. See also Fredman, Sandra, Human Rights Transformed: Positive Rights and Positive Duties (Oxford: Oxford University Press, 2008)CrossRefGoogle Scholar [Fredman, Human]. In this book, Sandra Fredman revisits the traditional understanding of human rights as protecting individual freedom against state intervention. She argues that human rights are based on a deeper understanding of freedom which pays attention to individuals’ ability to exercise their rights. This view requires the state to act positively to remove barriers and facilitate the full exercise of freedom by all human beings.

78. See Moreau, supra note 12 at 297-99. Scanlon argues that it is wrong to treat people as inferior and that equality is therefore needed for the prevention of stigmatizing differences in status (supra note 12 at 204). Scanlon identifies the reason behind equality as “clearly egalitarian” (ibid at 207). Similarly, Rawls identifies this wrong as “inequality in itself” and connects it with inequality in social status and with viewing those of lower status as inferior (see supra note 12 at 130-31). Finally, Cupit argues that the wrong of inferiority is the ultimate wrong of age discrimination. That is, age discrimination is unjust “only if it constitutes treating people as inferior on account of their age” (supra note 49 at 710).

79. See Moreau, supra note 12 at 298.

80. The negative content of stereotypes may add an additional dimension to the wrong of stereotyping but it is not an essential part of it. There are generalizations “that treat one feature as a proxy for another, based on relatively reliable statistical evidence”; others do not carry negative connotations (see Moreau, supra note 12 at 300). By contrast, according to Réaume, stereotypes “are inaccurate generalizations about the characteristics or attributes of members of a group” (Réaume, “Discrimination”, supra note 12 at 681). Also, she refers only to negative characteristics.

81. See Moreau, supra note 12 at 298.

82. Sometimes treating an individual according to his or her own merits might result in a wrong. This is why the principle of individual assessment does not constitute a complete account of equality. See discussion in Part F4 below.

83. For example, the stereotype of hard-working immigrants might imply that immigrants need to work harder because they are not skilled (see Moreau, supra note 12 at n 24).

84. For example, the generalization according to which whites are smart people implies that non-whites are not.

85. See Moreau, supra note 12 at 299.

86. See Cupit’s suggestion, supra note 78.

87. For a review of nine major negative stereotypes towards senior persons (such as illness, mental decline and uselessness) and their full contradiction by facts, see Palmore, Erdman B, Ageism: Negative and Positive, 2d ed (New York: Springer, 1999) at 20–27 Google Scholar. On stereotypes towards senior workers see Time for Action: Advancing Human Rights for Older Ontarians (Toronto, ON: Ontario Human Rights Commission, June 2001) at 42, online: http://www.ohrc.on.ca/en/resources/discussion_consultation/TimeForActionsENGL Google Scholar; Policy on Discrimination against Older Persons because of Age (Toronto, ON: Ontario Human Rights Commission, March 2002) at 8, online: http://www.ohrc.on.ca/en/resources/Policies/agepolicyen Google Scholar; and Levine, Martin Lyon, Age Discrimination and the Mandatory Retirement Controversy (Baltimore, MD: The Johns Hopkins University Press, 1988) at 126–27 Google Scholar.

88. See, e.g., a study conducted in Calgary according to which the most common reasons for non-hiring of senior workers were their assumed lack of qualification, education, training and new technology skills; their high labour cost due to high wage expectation, high health benefits and inability to recoup their training costs; inability to adapt to new age corporate culture; and other stereotypes on senior workers ( Gibson, Kevin J, Zerbe, Wilfrid J & Franken, Robert E, “Employers’ Perceptions of the Re-employment Barriers faced by Older Job Hunters” (1997) 48:2 Rel Ind 321 Google Scholar). See also Time for Action, supra note 87 at 41-42; Bytheway, Bill, Ageism (Buckingham, UK: Open University Press, 1995) at ch 4 and 7Google Scholar; and Thompson, supra note 1 at 13-33.

89. See supra notes 5-7.

90. See John Grimley Evans, “Age Discrimination: Implications of the Ageing Process” in Fredman & Spencer, supra note 1, who argues, for example, that senior workers might be slower learners and less functional than younger workers because the educational techniques are adapted to the prime age culture.

91. See Wood, Geoffrey, Wilkinson, Adrian & Harcourt, Mark, “Age Discrimination and Working Life: Perspectives and Contestations—A Review of the Contemporary Literature” (2008) 10:4 Int’l J Management Review 425 at 433CrossRefGoogle Scholar (citing studies which suggest that senior workers are generally more productive because of their higher levels of organizational commitment and loyalty), and Policy on Discrimination against Older Persons because of Age, supra note 87 at 8, 10-11.

92. For example, society tends to apply social perceptions about the young to senior people. This process has been termed the infantilization of the old. See Eglit, Howard, Elders on Trial: Age and Ageism in the American Legal System (Gainesville: University Press of Florida, 2004) at 11–12 Google Scholar. There are age restrictions for children and youth that we find justified because it is clear, for example, that a three-year-old child is not mature enough to drive a car. However, we tend to implicitly attribute the same characteristics to senior citizens as if they were losing their capacity just like children. This is clearly wrong as the situation of seniors is completely different from the situation of children and youth. No three-year-old child can drive a car whereas plenty of 75-year-old workers can still work and perform well.

93. See, e.g., Eglit, ibid at 35-37, who provides data from the US to support this claim.

94. See summary of studies in Levine, supra note 87 at 108-17; Gunderson, Morley, “Age Discrimination in Employment in Canada” (2003) 21:3 Contemporary Economic Policy 318 at 325CrossRefGoogle Scholar; Eglit, supra note 4 at 679; and Kesselman, supra note 41 at 173. According to McEvoy and Cascio, who examined 96 independent studies published over the course of 22 years, age and job performance are generally unrelated. The type of performance measure as well as the type of job had no significant impact on the results. A consistent yet modest positive correlation was found when examining very young workers ( McEvoy, Glenn M & Cascio, Wayne F, “Cumulative Evidence of the Relationship between Employee Age and Job Performance” (1989) 74:1 J Applied Psychology 11)CrossRefGoogle Scholar.

95. See a recent study on the relation between workers’ age and their productivity in work teams based on a data on errors occurring in the production process of a Mercedes-Benz truck factory in Germany. It found that productivity does not decline at least up to age 60 and that senior workers’ physical declines are offset against their experience and ability to work well in a team ( Börsch-Supan, Axel & Weiss, Matthias, “Productivity and Age: Evidence from Work Teams at the Assembly Line”, Mannheim Research Institute for the Economics of Aging, 2011, online: http://www.mea.uni-mannheim.de/uploads/user_mea_discussionpapers/1057_MEA-DP_148-2007.pdf) Google Scholar.

96. See Alexander, Larry, “What makes Wrongful Discrimination Wrong? Biases, Preferences, Stereotypes, and Proxies” (1992) 141:1 U Pa L Rev 149 at 170-71CrossRefGoogle Scholar; and infra notes 125-26.

97. Barth, Michael C, McNaught, William & Rizzi, Philip, “The Costs and Benefits of Older Workers” in Crown, William H, ed, Handbook on Employment and the Elderly (Westport, CT: Greenwood Press, 1996) 324 at 340-45Google Scholar.

98. Ibid at 338-39.

99. Thurow, Lester C, Generating Inequalities: Mechanisms of Distribution in the US Economy (New York: Basic Books, 1975) at 204.CrossRefGoogle Scholar

100. Moreau, supra note 12 at 302-03.

101. See Levine, supra note 87 at 141.

102. See Réaume, “Discrimination”, supra note 12 at 679.

103. See Levine, supra note 87 at 140-41. See also Cuddy, Amy JC & Fiske, Susan T, “Doddering but Dear: Process, Content, and Function in Stereotyping of Older Persons” in Nelson, Todd D, ed, Ageism: Stereotyping and Prejudice against Older Persons (Cambridge, MA: MIT Press, 2002) 3 Google Scholar, who examine the social-psychological underpinning of stereotyping and conclude that people have compound often contradictory views of senior persons.

104. See, e.g., Issacharoff, Samuel & Harris, Erica Worth, “Is Age Discrimination Really Age Discrimination?: The ADEA’s Unnatural Solution” (1997) 72:4 NYU L Rev 780 at 798Google Scholar; and Reaves, Rhonda M, “One of These Things is not Like the Other: Analogizing Ageism to Racism in Employment Discrimination Cases” (2004) 38:4 U Rich L Rev 839 at 849-50Google Scholar. Furthermore, based on Gordon W Allport’s definition of prejudice (infra note 107) which includes three elements (cognitive, affective and conative), Eglit concludes that “it is debatable whether ageism rises to the level of a prejudice” (supra note 92 at 23). He therefore prefers to classify ageism as a “bias” rather than prejudice (ibid at 24).

105. See supra notes 90-92 and accompanying text.

106. See a field experiment that analyzed gender and age discrimination in hiring in the labour market of Madrid found clear evidence of age discrimination. As part of this study, fictitious curriculum vitae were sent in response to more than one-thousand job offers on the Internet in six occupations (sales reps, marketing technicians, accountant’s assistant, accountant, administrative assistant and executive secretary). Firms clearly preferred to interview 24 or 28-year-old candidates over 38-year-old candidates. Not only does this study suggest that age discrimination against senior workers is widespread but it also shows that it starts at a very young age ( López-Ibor, Rocío Albert, Escot, Lorenzo & Cornejo, José Andrés Fernández, “A Field Experiment to Study Sex and Age Discrimination in Selection Processes for Staff Recruitment in the Spanish Labor Market”, Papeles de Trabajo Working Paper No 20/08 (May 1, 2008), online: http://ssrn.com/abstract=1279544) Google Scholar. See also Duncan, Colin, “Ageism, Early Exit, and the Rationality of Age-Based Discrimination” in Glover, Ian & Branine, Mohamed, eds, Ageism in Work and Employment (Aldershot, UK: Ashgate, 2001) 25.Google Scholar

107. See Allport, Gordon W, The Nature of Prejudice (Cambridge, MA: Addison-Wesley, 1954).Google Scholar

108. Bytheway, supra note 88 at 22-23.

109. Perdue and Gurtman found that ageism has “an “automatic” cognitive component” ( Perdue, Charles W & Gurtman, Michael B, “Evidence for the Automaticity of Ageism” (1990) 26:3 J Experimental Social Psych 199 at 199CrossRefGoogle Scholar. That is, age-biases in people’s perception may have become so common that they may influence social judgments. Similarly, Levy and Banaji illustrate how ageism can operate implicitly—without conscious awareness, control or intention to harm—while still affecting our thoughts, feelings, and behaviours (ibid at 199-201; Levy, Becca R, “Unconscious Ageism” in Palmore, Erdman B, Branch, Laurence & Harris, Diana K, eds, Encyclopedia of Ageism (New York: Haworth Pastoral Press, 2005) at 335–39 Google Scholar; Becca R Levy & Mahzarin R Banaji, “Implicit Ageism” in Nelson, supra note 103).

110. Young discusses the emerging cultural and medical association between advanced age and disease, degeneracy, and death. She argues that the “normalizing discourse of science and medicine endows such associations with the authority of objective truth” (supra note 12 at 129). She maintains that the aversion that senior people evoke arises from the cultural connection of these groups with death: “… old people produce a border anxiety like that structuring homophobia. I cannot deny that the old person will be myself, but that means my death, so I avert my gaze from the old person, or treat her as a child, and want to leave her presence as soon as possible” (ibid at 147).

111. As Eglit argues, “it is also true that antipathy, condescension, and deprecation are directed toward the elderly” (supra note 92 at 24).

112. See Levine, supra note 87 at 133-37, 142. See also Duncan, supra note 106 at 27. In this context it is worth noting that mandatory retirement proponents often argue that mandatory retirement (rather than individual assessment) treats senior workers with equal concern and respect. It is argued that if mandatory retirement is banned, workers will be subject to constant monitoring and performance evaluation and to more dismissals prior to the normal age of retirement due to poor performance. However, as long as performance evaluation is based on objective standards, periodical and applies to workers at all ages, it better promotes the idea of equal concern and respect (see McKinney, supra note 39 at 430-31, L’Heureux-Dubé J).

113. See Moreau, supra note 12 at 303-07. Also see: Scanlon who claims that inequalities provide some individuals with an excessive degree of control over the lives of others, and therefore equality is about preventing unacceptable forms of power or domination (supra note 12 at 205); and Rawls (supra note 12 at 130-31).

114. Anderson, supra note 12 at 288-89. Anderson then compares the implications of two conceptions of equality. The first conception “takes the fundamental injustice to be the natural inequality of the distribution of luck” … [called] “luck egalitarianism” (ibid at 289). Anderson argues that it fails the most fundamental egalitarian test: that its principles express equal respect and concern for all citizens. The theory she defends is “democratic equality” (ibid). It integrates principles of distribution with the expressive demands of equal respect. It requires an end to oppressive social relationships (ibid). Scheffer also defends an account of equality that focuses on eliminating oppression. According to Scheffer, the social and political ideal of equality is not a distributive ideal and its aim is not to compensate for misfortune. “It is, instead, a moral ideal governing the relations in which people stand to one another …. It claims that human relations must be conducted on the basis of an assumption that everyone’s life is equally important, and that all members of a society have equal standing. … [E]quality … is opposed not to luck but to oppression, to heritable hierarchies of social status …, and to the undemocratic distribution of power. … [I]t emphasizes the irrelevance of individual differences for fundamental social and political purposes. As a moral ideal, it asserts that all people are of equal worth and that there are some claims that people are entitled to make on one another simply by virtue of their status as persons …. [However, it] has distributive implications” ( Scheffer, Samuel, “What is Egalitarianism?” (2003) 31:1 Phil Pub Affairs 5 at 21-22)Google Scholar.

115. Young, supra note 12 at ch 1. Young identifies five forms of oppression (exploitation, marginalization, powerlessness, cultural imperialism, and violence) (ibid at ch 2).

116. Ibid at ch 3.

117. Oppression is “systemic constraints on groups that are not necessarily the result of the intentions of a tyrant. Oppression … is structural, rather than the result of a few people’s choices or policies. Its causes are embedded in unquestioned norms, habits, and symbols, in the assumptions underlying institutional rules and the collective consequences of following those rules” (ibid at 41).

118. For example, a neutral policy that requires all employees to work on Saturdays has a disproportionate effect on Jews. It was not designed to harm Jews but refusing to accommodate them perpetuates the social and political domination of some religious groups. See Ontario (Human Rights Commission) v Simpsons-Sears Ltd, [1985] 2 SCR 536 Google ScholarPubMed.

119. See Moreau, supra note 12 at 304-05.

120. See, e.g., Braverman, Harry, Labor and Monopoly Capital (New York: Monthly Review Press, 1974) at 52–58 Google Scholar. The inherent inequality of bargaining power is mostly due to the fact that normally the employer possesses information that the employee lacks. Furthermore, the individual employee has to bear the costs of switching jobs and the risk of not finding a new job, while the replacement of an employee is much easier and less costly for the employer, who also usually has a deeper pocket (see Davidov, Guy, “Collective Bargaining Laws: Purpose and Scope” (2004) 20:1 Int’l J Comp Lab L & Ind Rel 81 at 84-85)Google Scholar.

121. Simitis compares the perceived “natural” role of women as “housewives” and “mothers” to the “natural” status of senior workers as “pensioners”. He argues that the societal alternative status of senior workers pushes them away from employment. And in Simitis’ words: “just as with women, the alternative role transforms older employees into a group whose presence on the labour market can be steered by activating or deactivating their additional status. The “natural” alternative thus develops into a key policy element for absorbing shocks or remedying a shortage of labour supply” ( Simitis, Spiros, “Denationalizing Labour Law: The Case of Age Discrimination” in Blanpain, Roger & Weiss, Manfred, eds, The Changing Face of Labour Law and Industrial Relations, Liber Amicorum for Clyde W Summers (Baden-Baden: Nomos Verlagsgesellschaft, 1993) 177 at 184)Google Scholar. See also Wood et al, supra note 91 at 429 (senior workers “bear a disproportionate share of the costs of periodic structural changes under capitalism. In particular, it is more socially acceptable, even to the older workers themselves, for older workers to bear the brunt of job losses. Since older workers are nearer to ‘normal’ retirement age than other age cohorts, they are also more easily persuaded and Pressured to take early retirement”).

122. In the US for example according to the Social Security Act, 1935, 42 USCA § 301 et seq, a retired worker is entitled to full benefits at his or her “Normal Retirement Age” (NRA). Under a 1983 amendment to the Act, the NRA is gradually stepped up from 65 in 2000 to reach 67 by 2022. A worker may choose to receive actuarially reduced benefits at age 62 as the earliest eligibility age or get increased benefits if they wait until the age of 70. In the UK, between 2010 and 2020, women’s state pensionable age will gradually rise from 60 to 65, as for men. State pensionable age for both men and women will gradually increase from 65 to 68 by 2044-46. See the Pensions Act 1995 (c 26); the Pensions Act 2007 (c 35). Canada has not yet increased the age of eligibility but many are calling for such a reform.

123. See, e.g., Townson, Monica, Growing Older, Working Longer: the New Fact of Retirement (Ottawa, ON: Canadian Centre for Policy Alternatives, 2006)Google Scholar, who describes how the responsibility for retirement income has shifted from collective actions and programs and onto individuals In 2006, less than 40% of Canadians belong to a registered pension plan through their work, and many are not able to save enough on their own.

124. Young, supra note 12 at 147. Young argues that, “[i]nsofar as members of these groups assume the position of subjects within the dominant culture, they experience members of their own group abjectly” (ibid at 148).

125. On the different reactions to ageism, see Erdman B Palmore, “Responses to Ageism” in Palmore et al, supra note 109 at 261-64. Some senior people respond to ageism with acceptance which may vary from reluctant surrender to full endorsement. Some voluntarily disengage from social life and remain satisfied. Others are apathetic. They do not like their situation but they feel they have no choice. They might not be aware of ageism, accepting age limits as legitimate.

126. See Macnicol, John, Age Discrimination: An Historical and Contemporary Analysis (Cambridge: Cambridge University Press, 2006) at 65 CrossRefGoogle Scholar; Young, supra note 12 at 148; Wood et al, supra note 91 at 429. See also Supporting and Engaging, supra note 6 at 14-15. This report has examined, among other things, the challenges faced by displaced senior workers who wish to re-enter the Canadian labour market. It found that these workers face economic as well as physiological barriers to achieving re-employment. Among these barriers, “individuals reported that, despite a feeling that they had much to offer, they perceived that employers would not see value in them through expressions such as “I’m too old”, or “Who would want to hire me?” Others expressed a lack of confidence and/or motivation to undertake something “new” at an older age, including a new job, training or education, or self-employment.”

127. See Moreau, supra note 12 at 307-12. See also Rawls who identifies hardship and hunger as one of the reasons for regulating social and economic inequalities. He notes that what bothers us here is not the inequality of income and wealth but rather that “all should have at least enough to meet their basic needs” (supra note 12 at 130).

128. Frankfurt, supra note 12 at 134-35, 146-48. See also Raz on rhetorical egalitarianism, the wrong of poverty versus inequality and the concern for the alleviation of hunger versus the concern for equality (supra note 69 at 227-29, 239-40).

129. Similarly, Cowen argues that we should give special moral attention to those individuals with a low absolute standard of living. Our basic concern is with their absolute insufficiency regardless of how much better off other individuals are (Tyler Cowen, “Comment on Daniels and McKerlie” in Cohen, supra note 9 at 228, 233). See also Chandler, John, “Mandatory Retirement and Justice” (1996) 22:1 Social Theory & Practice 35 at 39-40CrossRefGoogle Scholar.

130. Scanlon, supra note 12 at 203.

131. Ibid at n 3.

132. According to Parfit, since people hold multiple identities during their lives (see supra note 43), compensation within a life over time is not always possible. We should therefore assist not those who are worse off in their lives as a whole, but those who are worse off at particular times. The priority view denies that equality has any intrinsic value. It is not egalitarian (Parfit, Reasons, supra note 43 at 337; Parfit, “Comments”, supra note 43 at 869-70; Parfit, “Priority”, supra note 49 at 18-25).

133. Parfit, “Priority”, supra note 49 at 3-4.

134. McKerlie, Dennis, “Egalitarianism and the Difference between Interpersonal and Intrapersonal Judgments” in Hotug, Nils & Lippert-Rasmussen, Kasper, eds, Egalitarianism: New Essays on the Nature and Value of Equality (Oxford: Oxford University Press, 2007) 157 at 170Google Scholar.

135. McKerlie develops the principle of priority as an alternative to the Complete Lives Approach. Although it does not view inequality as wrong in and of itself, the principle of priority promotes equality because it focuses on benefiting those who are currently worse-off. It does not deny that within life, benefits at one stage compensate for harms at another stage. However, it is not a full compensation because receiving benefits when one is worse off is more significant than in other times. We therefore should help those who are worse off now even if they were better off in the past (McKerlie, “Equality”, supra note 21 at 288-95; McKerlie, “Young”, supra note 33 at 164-66). In his early work McKerlie presented his idea of priority as egalitarian because it holds that badly-off people have stronger claims than better-off people ( McKerlie, Dennis, “Equality and Priority” (1994) 6:1 Utilitas 25 at 25CrossRefGoogle Scholar; McKerlie, Dennis, “Priority and Time” (1997) 27:3 Can J Phil 287 at 287CrossRefGoogle Scholar; and McKerlie, “Young”, supra note 33 at 163-64).

136. McKerlie, “Young”, supra note 33 at 164.

137. First, the principle of priority does not provide us with substantial tools to answer questions such as how much to transfer from one individual to another. Second, while the worse off should be given a priority, it is morally justified only to a limited extent (i.e., until they reach a certain threshold where they have enough). Intuitively, we are not concerned by inequalities between the rich and the super-rich. See Nils Hotug & Kasper Lippert-Rasmussen, “An Introduction to Contemporary Egalitarianism” in Hotug & Lippert-Rasmussen, supra note 134 at 28.

138. See Scanlon, supra note 12 at 203-04.

139. See Moreau, supra note 12 at 312.

140. The implications of embracing a sufficiency concern rather than priority principle at temporal stages of lives may be demonstrated by the following example:

Here, our intuition tells us that we should help person B at Time III, although his or her total well-being is higher than person A. Now compare the above example with the following situation:

When ‘2’ is more than the minimum needed for living a life of dignity, we do not intuitively want to help person B at Time III. Indeed, person B is worse off at time III, but still we cannot ignore the fact that the total well-being of person A is lower than that of person B. Yet, according to a priority principle we should help person B. According to the Dignified Lives Approach, given that the five principles (including sufficiency) are respected, we should help person A because of his or her lower total well-being.

141. See Moreau, supra note 12 at 309.

142. On the adequate level of living conditions, see, e.g., Binswanger, Johannes & Schunk, Daniel, “What is an Adequate Standard of Living during Retirement?” Center Discussion Paper Series No 2008-82 (September 25, 2008), online: http://ssrn.com/abstract=1275702 Google Scholar. This paper addresses the question of what is the adequate standard of living during retirement with a survey, individually tailored to each respondent’s financial situation, conducted both in the US and in the Netherlands. Among other things, it finds that adequate levels of retirement spending exceed 70% of working life spending.

143. On the importance of on-the-job training to the employability of senior workers, see, e.g., Picchio, Matteo & Ours, Jan C Van, “Retaining Through Training: Even for Older Workers”, IZA Discussion Paper No 5591 (2011), online: http://ssrn.com/abstract=1796586 Google Scholar.

144. See supra notes 5-7.

145. See, e.g., Hoff, Andreas, “Tackling Poverty and Social Exclusion of Older People—Lessons from Europe”, Working Paper No 308 (Oxford: Oxford Institute of Ageing, October 2008) at 34, online: http://www.ageing.ox.ac.uk/system/fles/Working%20Paper%20308.pdf Google Scholar.

146. In the UK, see, e.g., Ogg, Jim, “Social Exclusion and Insecurity among Older Europeans: The Influence of Welfare Regimes” (2005) 25:1 Ageing & Society 69 CrossRefGoogle Scholar. In Israel, see, e.g., Brick, Yitzhak, “Elderly in the Poverty Circle” in Brick, Yitzhak, ed, Poverty and Aging (Tel Aviv: Hakibbutz Hameuchad, 2005) 9 Google Scholar (Hebrew). By contrast, in Canada poverty levels (measured by low income after tax) have fallen dramatically among senior people (aged 65 and above) from 13% of the senior population in 1988 to 54% in 2006 (as opposed to 113% for both 18-64 and under 18 groups in 2006) (see Statistics Canada, “Person in Low Income after Tax, by Prevalence in Percent”, online: http://www40.statcan.gc.ca/l01/cst01/famil19a-eng.htm) Google Scholar. These low rates are mainly due to greater access to Canada and Quebec Pension plans and benefits received from government transfers such (97% of seniors received income from one or more of these sources in 2005). The main problem may be among those who are 60-64 and are still not entitled to these benefits. Still, Canadian rates are lower than in most industrialized countries. According to the Luxemburg Income Study comparative data, 23% of senior people in Spain, 22% in Australia, 21% in the US, 21% in Israel, and 16% in the UK are poor (see online: http://www.lisproject.org/key-fgures/key-fgures.htm). The senior poverty rates are computed at 50% of the median equivalent income.

147. See Bytheway, supra note 88 at 52. A study conducted in the US estimates the effects of retirement on health status (measured by indicators of physical and functional limitations, illness conditions, and de Pression). It finds that complete retirement leads to a 5-16% increase in difficulties associated with mobility and daily activities, a 5-6% increase in illness conditions, and a 6-9% decline in mental health, over an average post-retirement period of six years. It also indicates a decline in physical ability and social interactions. These negative effects might intensify in a case of involuntary retirement. It concludes that retiring at a later age may lessen or postpone poor health outcomes for senior adults and raise well-being ( Dave, Dhaval, Rashad, Inas & Spasojevic, Jasmina, “The Effects of Retirement on Physical and Mental Health Outcomes”, Andrew Young School of Policy Studies Research Paper Series No 07-35 (October 2007), online: http://ssrn.com/abstract=1024475) Google Scholar. A 15-year survey conducted in Israel found that there is a strong positive correlation between wealth and life expectancy of senior people, and between physical activity (working, volunteering, exercising, etc) and life expectancy (see Brick, supra note 146 at 9, 15-16).

148. One of the major strategies used by the UN to prevent poverty is the enhancement of senior people’s employment (see Venne, Robert, “Mainstreaming the Concerns of Older Persons into the Social Development Agenda” (UN Programme on Ageing, Division for Social Policy and Development, Department of Economic and Social Affairs), online: http://www.un.org/esa/socdev/ageing/documents/positionpaper.pdf) Google Scholar.

149. See, e.g., Rethink Retirement: 2008 Survey of Canadians’ Preparedness for Life after Work (Desjardin Financial Security, 2008), online: http://www.dsf-dfs.com/NR/rdonlyres/77A71336-1047-4FDD-9095-7BF69406F754/0/BookletRethinkRetirement2008.pdf. A survey conducted in October 2008 found that 42% of Canadians over forty (50% of women, compared to 36% of men) wish to postpone retirement by an average of 5.9 years. See also Retirement at the Tipping Point: The Year that Changed Everything (Age Wave and Harris Interactive, 2009), online: http://www.agewave.com/RetirementTippingPoint.pdf (almost 60% of Americans lost money in mutual funds, 401(k) plans or the stock market in the recent economic crisis and therefore plan to postpone retirement by an average of 4.2 years).

150. Greschner, supra note 12 at 315, 321; Greschner, Donna, “The Right to Belong: The Promise of Vriend “ (1998) 9 NJCL 417 at 422Google Scholar. See also Fredman, “Age”, supra note 11 at 45-46.

151. Young, supra note 12 at ch 6.

152. For example, when physical requirements for employment are based on the image of a younger worker.

153. See Réaume, “Discrimination”, supra note 12 at 686-88.

154. Ibid at 689.

155. Fredman, “Age”, supra note 11 at 39-41.

156. Young, supra note 12 at ch 6. For more on social inclusion as the non-egalitarian distributive aim of anti-discrimination laws which explains when and why deviations from the normal rule of equal treatment are required see Collins, Hugh, “Discrimination, Equality and Social Inclusion” (2003) 66:1 Mod L Rev 16 CrossRefGoogle Scholar.

157. Fredman, “Age”, supra note 11 at 45-46.

158. While unemployment might result in social exclusion, employment—let alone forced employment—will not necessarily generate social inclusion and integration. It is clear that additional measures to enhance equality in other spheres (such as housing and health) are also needed. The quality of the jobs available is also important. On the myth that social inclusion is identical to labour market inclusion, and that work will always play a positive role in alleviating poverty, mitigating economic disparities and enhancing social citizenship, see Paz-Fuchs, Amir, “Welfare to Work: Myth and Fact, Social Inclusion and Labour Exclusion” (2008) 28:4 Oxford J Legal Stud 797 CrossRefGoogle Scholar.

159. Réaume, “Harm”, supra note 12 at 377.

160. For some empirical evidence from the US on the decline in social interaction post-retirement see Dave et al, supra note 147. On the isolation and social exclusion of senior people in Israel, see also Brick, supra note 146. For empirical evidence on poverty and social exclusion of senior people in Europe see Hoff, supra note 145 at ch 4-6.

161. Bastide v Canada Post Corp [2005] FCJ No 1724 (QL) (October 14, 2005), online: http://www.lancasterhouse.com/decisions/2005/dec/FCC-Bastide-v-CanadaPost.pdf.Google Scholar

162. Ibid at paras 37, 39, 46.

163. Note that although the Federal Court acknowledged that “individualized assessment does not always constitute sufficient accommodation”, it ruled that accommodation was not required because the test was “reliable and relevant” and measured “the qualifications that are truly required to perform the work in question in an efficient and optimal manner” (ibid at para 48). Furthermore, eliminating the test would constitute undue hardship due to the employer’s inability to organize its staff efficiently and the cost of training (ibid at para 50).

164. Schultz, Vicki, “Life’s Work” (2000) 100:7 Colum L Rev 1881 at 1886-92CrossRefGoogle Scholar.

165. Ibid at 1887-88.

166. Ibid at 1884.

167. Schultz cites several studies that show how factory shutdowns and downsizing have negatively affected workers who became “politically and socially inactive”, and “lost a sense that they can be efficacious in the world” (ibid at 1889). See also Szinovacz, Maximiliane E, “Contexts and Pathways: Retirement as Institution, Process, and Experience” in Adams, Gary A & Beehr, Terry A, eds, Retirement: Reasons, Processes and Results (New York: Springer, 2003) 6 at 15Google Scholar (since retirement benefits are tied exclusively to employment history and earnings, employment is strongly identified with productivity and implicitly with social status and recognition).

168. See supra note 147.

169. See Reference Re Public Service Employee Relations Act (Alta) , [1987] 1 SCR 313 at 368, J, Dickson Google Scholar.

170. See Friedan, Betty, The Fountain of Age (New York: Simon & Schuster, 1993) at 79–80, 195Google Scholar.

171. On the negative effects of ‘guillotine retirement’ see, e.g., Reday-Mulvey, Geneviéve, Working Beyond 60: Key Policies and Practices in Europe (New York: Palgrave Macmillan, 2005) at 36–37 CrossRefGoogle Scholar.

172. Fredman, “Age”, supra note 11 at 30.

173. See Thompson, supra note 1 at 14-15.

174. See British Columbia (Public Service Employment Relations Commission) v British Columbia Government and Service Employees’ Union, [1999] 3 SCR 3 at para 62Google ScholarPubMed [Meiorin].

175. See supra notes 76-77 and accompanying text.

176. Réaume, “Harm”, supra note 12 at 379-80.

177. Dworkin, Sovereign, supra note 55 at 122. On the relation between equality and liberty see Dworkin, Taking, supra note 55. While Rawls gives liberty an important role within the two principles of justice, Dworkin argues that the right to liberty is not a fundamental right. The parties to the original position select basic liberties to protect basic goods they value rather than as goals in themselves (ibid at 178-83). Dworkin therefore asserts that there is no general, abstract right to liberty as such. Yet, individuals do have rights to specific liberties such as freedom of speech and freedom of occupation. These distinct liberties are derivative—not from a more abstract right to liberty but from the right to equality (ibid at xiii and ch 12). According to the “liberal conception of equality” (ibid at 274), government “must not constrain liberty on the ground that one citizen’s conception of the good life of one group is nobler or superior to another’s” (ibid at 273). Specific liberties are to be recognized only when the fundamental right to equality requires them. Dworkin develops these ideas in Sovereign Virtue, supra note 55 at ch 3 (“if we accept equality of resources as the best conception of distributional equality, liberty becomes an aspect of equality rather than … an independent political ideal potentially in conflict with it” (ibid at 121)). By contrast, Raz rejects the notion that rights (including the right to equality) provide the foundation of political morality of liberalism. He argues, however, that morality can include rights at its foundation. Rights are not fundamental but derive from interests. According to Raz, liberalism is based on a doctrine of political authority which promotes liberty and autonomy. A powerful argument in support of political freedom is derivable from the value of personal autonomy. Morality “regards personal autonomy as an essential ingredient of the good life, and regards the principle of autonomy, which imposes duties on people to secure for all the conditions of autonomy, as one of the most important moral principles” (Raz, supra note 70 at 415 and ch 7-9, 15).

178. See Dworkin, Sovereign, supra note 55 at 133, 148, 181.

179. Réaume, “Discrimination”, supra note 12 at 689.

180. Fredman, “Age”, supra note 11 at 43.

181. Ibid at 43-44.

182. See text accompanying notes 5-7.

183. As Barak, Aharon argues, “occupation enables human beings to shape their identities and social status. Depriving their freedom to choose their profession will also take away the meaning of life” (Barak, Aharon, Interpretation in Law: Constitutional Interpretation, vol 3 (Jerusalem: Nevo, 1994) at 583 Google Scholar (Hebrew) [translated by author]).

184. When the State provides the only workplace for the occupation of an individual, the refusal to employ the person equals the prevention of his or her occupation. See HJC 5936/97 Dr Lam v Dal, PD 53(4) 673 at 682, 691-93 (Hebrew).

185. Epstein for example argues that “anti-discrimination law is the antithesis of freedom of contract, a principle that allows all persons to do business with whomever they please for good reason, bad reason, or no reason at all” ( Epstein, Richard A, Forbidden Grounds: The Case against Employment Discrimination Laws (Cambridge, MA: Harvard University Press, 1992) at 3 Google Scholar). He maintains that anti-discrimination laws force people to enter into transactions against their will. Heavy external Pressure is imposed on the unwilling party and even increases in disparate impact cases (ibid at 445).

186. Rawls, supra note 12 at 57-59. See also Fredman, Human, supra note 77 at 3 and ch 1.

187. Raz, supra note 70 at 166.

188. Ibid at 373, 408, 415, 417.

189. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

190. [1989] 1 SCR 143 at 171, per McIntyre J cited in R v Kapp, supra note 60 at para 15.

191. R v Kapp, supra note 60 at para 17.

192. Note that in the private sector, the complainant has to prove that he or she was treated differently on the basis of a prohibited ground. It seems as if no second step is needed. However, recently courts have applied the two-stage test for assessing discrimination under s 15 of the Charter to discrimination cases under the human rights legislation. See the concurring judgment of Chief Justice McLachlin, Justice Abella and Justice Bastarache in McGill University Health Centre (Montreal General Hospital) v Syndicat des employé de L’Hopital general de Montréal, 2007 SCC 4 at para 49. This judgment establishes a requirement for the complainants to prove the arbitrariness of the disadvantaging criterion or conduct either in purpose or effect. See also Ontario (Disability Support Program) v Tranchemontagne, 2010 ONCA 593 at para 74, where the Ontario Court of Appeal held that the test for assessing discrimination under s 15 is applicable to cases under the Ontario Human Rights Code (“establishing discrimination under the Code is consistently expressed in the jurisprudence as requiring a distinction based on a prohibited ground that creates a disadvantage”).

193. Most anti-age discrimination laws around the globe use comparative language. See, for example, the language of the EU Directive (supra note 53) and the Employment Equality (Age) Regulations in the UK. Even the Canadian and American laws which do not use comparative terms were interpreted as such. Generally, a worker has to establish a prima facie case of age discrimination by showing (in hiring or promotion situation) that he or she was a member of the protected group, qualifed for the position, and was denied the opportunity while another applicant or worker who was no better qualifed got it or the employer left it open and is still searching for candidates (see England, Geoff et al, Employment Law in Canada, 4th ed (Markham, ON: Butterworths, 2005) at § 545Google Scholar; McDonnell Douglas v Green, (1973) 411 US 792)Google ScholarPubMed.

194. Withler v Canada (Attorney General), [2011] SCJ No 12 at paras 2, 55-60.Google Scholar

195. Ibid at paras 62, 65. Note that Withler was an age-based distinction case where the Supreme Court of Canada denied the claim, although it deemphasized the role of comparison. This is because the Court applied a very narrow interpretation of the two-stage test (see supra note 60 and accompanying text).

196. Current anti-age discrimination laws are often criticized as effective in lawsuits by white males who were dismissed from a well-paid job, and ineffective in systemic cases of non-hiring. See, e.g., Issacharoff & Harris, supra note 104.

197. See, e.g., s 14(1) of the Manitoba Human Rights Code, RSM 1987-88, ch 45; ss 10 and 16 of the Quebec, RSQ c-12; ss 9(b) and 7(e) of the Yukon Human Rights Act, RSY 2002, ch 116; and ss 5(1), 10(1), 11(1)-(2) of the Ontario Human Rights Code, RSO 1990, ch H19.

198. See text accompanying supra note 174.

199. Supra notes 60-61 and accompanying text.

200. Supra note 3 and accompanying text.

201. Take, for example, Ontario Nurses’ Association v Municipality of Chatham-Kent and OAG, 104 CLAS 267, 2010 CLB 33134, online: http://www.fasken.com/fles/upload/Chatham-Kent1.PDF.Google Scholar In this case, ss 25(2.1)-(2.3) of Ontario Human Rights Code, RSO 1990, ch H19 and the definition of age under Ontario Employment Standards Act, SO 2000, ch 41 and Regulation on Benefit Plans (O Reg 286/01) (which allow employers to discriminate against workers over 64 in the provision of benefits) were constitutionally challenged. The arbitrator held that these provisions violated s 15 but were justified under s 1 of the Charter of Rights and Freedoms. In reaching this conclusion, a “considerable weight” was given to the fact that ““age is different” from other prohibited grounds of discrimination” (ibid at para 139). In line with the Complete Lives Approach, the arbitrator noted that “[b]ecause the same employees who negotiate age based limitations on benefits will be subject to the same terms themselves in the future, such restrictions are less likely to result in significant deleterious effects in the form of substantive discrimination and more likely to attempt to maximize compensation and ben-efts for all employees when their working life is looked at as a whole, not simply focusing on a single age based period in that working life” (ibid at para 140). Another example can be found in Decision No 512/06 of the Workplace Safety and Insurance Appeals Tribunal (2011 ONWSIAT 2525), online: http://www.wsiat.on.ca/Decisions/2011/512%2006.pdf. In this case, s 43(1)(c) of Ontario Workplace Safety Insurance Act (which limits loss of earning benefits to two years for post-injury if the worker was 63 years or older on the date of the injury) was constitutionally challenged. The Tribunal held that this provision did not violate s 15 because the distinction was not discriminatory (i.e., failed to meet the second stage of the R v Kapp test). In a nutshell, a broader interpretation, more in line with the Dignified Lives Approach, might have reached a different conclusion given the fact that such a provision does not respect the first principle of individual assessment (there are workers who are capable and plan to work past 65 and individualized assessment to measure entitlement to LOE is feasible and exists in British Columbia and Alberta) and the third principle of sufficiency (limiting their entitlement lowers their income drastically).