Discrimination Due to Age May Be Unlawful Unless Genuinely an Occupational Requirement

Exotic Dancer The Human Rights Code, R.S.O. 1990, c. H.19 provides a variety of protections from discrimination; however, there are certain exceptions that allow discrimination is certain circumstances.

An interesting recent case, unfortunately dismissed as abandoned prior to decision by the Human Rights Tribunal of Ontario, involved the termination from employment of a female exotic dancer who was deemed too "old" and lacking the appearance of youth.

Discrimination from employment based on age is protected per s. 5(1) of the Human Rights Code; however in the case of Ouwroulis v. New Locomotion, 2009 HRTO 1498 it seems the Human Rights Tribunal of Ontario was preparing to answer the question as to whether age as a factor in diminishing sex appeal was a sufficient reason for discrimination based on age.

In this case, Ms.  Ouwroulis was capable of doing the job duties without impairment by age, but was told that, "they were going in a new direction with younger girls" thus the age factor of concern related solely to appearance of youth.

Many within legal circles remain intrigued to know how this case would be decided if followed through rather than abandoned prior to a decision whereas such a decision would consider and be based upon review of the exception found at s.24(1)(b) of the Human Rights Code which permits age discrimination if:

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

Considering how individually objective sex appeal is, it would be quite interesting to know if the Human Rights Tribunal of Ontario would have deemed age with "appearance of youth" as a "bona fide qualification due to the nature of the employment."

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