Think your company needs a youth movement? Best to tread carefully | Financial Post

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Howard Levitt: Think your company needs a youth movement? Best to tread carefully

Age-targeted hiring campaigns come with unintended consequences

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Howard Levitt and Kathryn Marshall

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It is no secret that employers have hiring preferences.

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Usually, these come in the form of qualifications and geography.

But sometimes the preferences are demographic, things such as age and gender. Companies are usually less open about these. Why? Because they can land employers in hot water and run afoul of human rights law.

Those potential risks are why a recent hiring initiative by LVMH raised eyebrows.

For those who enjoy a good bargain and consider the Gap to be the height of fashion, the initials LVMH may not mean anything.

They stand for Louis Vuitton Moët Hennessy, the multinational conglomerate behind luxury brands Louis Vuitton, Tiffany & Co., Dior and Fendi, among others.

In an effort to attract more Gen Z shoppers, the company just wrapped up an initiative directed at hiring 25,000 employees under the age of 30.

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This initiative might work, resulting in more young people stocking up on luxury goods, and was probably crafted by some keen, well-intentioned marketing pros.

However, age-targeted hiring campaigns come with unintended consequences that can cost much more than a Fendi bag.

LVMH, like any other company doing business in Canada, cannot refuse to employ someone (or advantage someone) based on their age.

By publicizing this initiative, LVMH has potentially exposed itself to a myriad of claims for human rights damages by any job applicant refused a job opportunity with the organization who is over 30 — though to our knowledge none has yet been filed.

Their situation is not unique.

Companies regularly make business and marketing decisions without considering their legal consequences.

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Lawyers usually aren’t invited to the planning parties. Some might say (rightly) that we ruin the fun.

Legal exposure usually isn’t considered until after the organization discovers it is being sued by prospective, current and/or former employees.

It is at this point they contact us looking for solutions.

Avoidable issues can usually be flagged by an employment lawyer during the planning process.

If a company pre-emptively considers the cons of a hiring campaign or new policy, it can often mitigate against the risk of impending lawsuits, saving hundreds of thousands — and often millions — of dollars.

These risks are particularly prevalent whenever organizations implement pay-related changes.

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Companies regularly revise their commission policies for salespeople. This type of initiative is entirely within the rights of the employer. However, to be enforceable, these policies must be carefully developed and implemented to comply with the ever-evolving law.

Whether the new policy negatively impacts employees’ earnings, whether the employer had the contractual right to make the change and if adequate notice was given are just three of the most basic issues to consider when changing a compensation policy.

In our experience, companies tend to address these matters only after conflict arises and fractures in the relationship with its staff emerge.

These risks should be addressed at the outset rather than while hitting the panic button and performing damage control.

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After all, if you need to commute in an unfamiliar setting during rush hour traffic, you don’t guess a route and hope for the best — you use an expert (i.e., Waze or Google) to map out the optimal route, accounting for existing and potential roadblocks along the way. Preparation and implementation of policies and initiatives in the workplace should be no different.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Kathryn Marshall is with Levitt Sheikh.

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