AR program Did I read that right?

[JBI]

I chuckled at the comparison between the AR program and letting women fly. Is there an ICAO restriction on women aviators? Weak comparison.

This is why Canadian Human Rights Law is a bit challenging. It's a multi-step process:
1- was there discrimination?

2- is there an exception?

3- If the exception is based on a bona fide occupational requirement, is there a way that a person could be reasonably accommodated without causing an employer undue hardship?

While International Regulations may play a role in determining whether there is a justified exception to discrimination, it plays no role in first determining whether there was discrimination. So yes, saying a woman or saying someone over 65 cannot stay in a job is discrimination. Now, whether there is a legal exception based, for example, on international laws comes to play in later steps.

Section 3 of the Canadian Human Rights Act outlines the prohibited grounds of discrimination:

-race,
-national or ethnic origin,
-colour,
-religion,
-age,
-sex,
-sexual orientation,
-gender identity or expression,
-marital status,
-family status,
-genetic characteristics,
-disability; and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

Section 7 of the Act states:

7 It is a discriminatory practice, directly or indirectly, (a) to refuse to employ or continue to employ any individual [...] on a prohibited ground of discrimination.

So, forcing someone out of a job based on a prohibited grounds of discrimination, be it race, sex, disability or age, is discrimination.

The second step is a review of whether certain exceptions may apply. In particular, it may be that there is a bona fide occupational requirement. A decent example is someone with severe visual impairment. It is a bona fide occupational requirement to have vision for many jobs, so even though a visually impaired person is indeed being discriminated against due to disability (which, like age, is a prohibited ground of discrimination) it can be argued that good vision is necessary for a particular job.

This is outlined in Section 15 of the Act:

Exceptions

15 (1) It is not a discriminatory practice if

(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;

Now, in determining if something is an exception, it is also necessary to determine whether an employer is able to reasonably accommodate an employee without undue hardship.

This is in Section 15(2) of the Act:

Accommodation of needs

(2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.

I think WJ timed this decision perfectly. It coincides with the integration bid between us and a company they bought to focus on "the south leisure market" (more flying that AR can't do). Add in the forecast of those reaching 65+ over the next few years, I think they have a pretty good defense against any challenge.

It will be interesting to see the Company's reasons for why, NOW, having any pilots over 65 constitutes undue hardship. The timing issue is a big one, especially as we switch to more north-south flying. However, reasonable accommodation doesn't need to be an all or nothing solution. For Air Canada, based on their seniority structure/scheduling and pay, it was found that having any 65+ pilots constituted undue hardship. The most recent Gedalof decision on the issue is a strong precedent, but not binding.

For example, an airline like Canadian North couldn't rely on it - they have almost no international flights. While WestJet is definitely has more in common with AC than Canadian North does, there are some pretty big differences.

To be clear, I'm not advocating for or against a particular position, more just looking at it the legal perspective. My own opinion is that there were conceivable solutions to be negotiated that would done a better job of handling the situation instead of their current directive. The current AR program was unsustainable; there is a very good chance an arbitrator or the CHRT will agree with the Company. It's a just disappointing (though not overly surprising) that the Company decided to go the blunt force route and essentially force a challenge.

[flieslikeachicken]

AR pilots can't fly over or into the US. That is a valid restriction.

There is an easy way to accommodate the restriction and that is to offer them a position at Encore. Encore flies only a few flights to the US and pilots can easily be kept off of them.

That easy solution will not be used because WestJet does not care about it's employees or customers.