The CBC is reporting that a 44 year old Toronto area stripper has filed a Human Rights Code complaint, alleging her employer’s decision to dismiss her as part of a movement to ‘younger girls’ amounts to illegal discrimination on the basis of ‘age’. We have discussed this sort of case in my Employment Law case. These cases don’t come up much, because most people don’t complain.
So, work through how the statute deals with this sort of case. Firstly, is it discrimination on a prohibited ground to fire an employee because she is too old for the job? The answer must certainly be that it is (unless the employee is under the age of 18), since the Code prohibits discrimination in employment on the basis of age. The next question then is whether the Code nevertheless exempts this form of discrimination (allows it). What exemption(s) could the employer rely on?
How about section 24(1)(b), which reads:
The right under section 5 to equal treatment with respect to employment is not infringed where,
(b) the discrimination in employment is for reasons of age, sex, record of offences or marital status if the age, sex, record of offences or marital status of the applicant is a reasonable and bona fide qualification because of the nature of the employment
Do you think ‘age’ is a BFOQ of being a stripper ‘because of the nature of the employment”? If so, at what age does a stripper become ‘too old’ to strip? That argument is going to be pretty interesting, if the employer attempts to justify its decision under s. 24(1)(b). And remember, no requirement is a BFOQ under s. 24(1)(b) unless it is impossible to accommodate the employee’s ‘age’ in order to enable her to perform the job (s. 24(2)) What accommodation do you think would enable a 44 year old woman to continue to work in a strip club? Some very unappealing and offensive arguments could be raised in answering that question.
The ‘expert’ evidence in the case could prove to be pretty interesting, since it will involve convincing the Tribunal that strip club clientele demand ‘young’ women (however defined). Isn’t this argument similar to arguing that if store customers prefer white workers, then an employer should be able to hire only white workers, or keep non-white workers out of site of the customers? (Recall the Bob Ringma fiasco a few years back?)