End It: Mandatory Retirement and the Charter

St. Thomas University

26 November 2007

Mandatory retirement should be banned in Canada, with a few exceptions allowed. It can do a lot of harm to those it forces to retire, and does little to benefit employers.  Employers should be able to retire employees when they can not do their job, but allowing mandatory retirement across the board is not the most effective way for this to be done.

The federal jurisdiction and several provinces in Canada do not consider mandatory retirement a human rights violation.  British Columbia, Saskatchewan, and Nova Scotia (to an extent),  allow mandatory retirement at the age of 65. New Brunswick and Newfoundland and Labrador allow  mandatory retirement if there is a,  “bona fide retirement or pension plan,” (Labour Law Analysis, Human Resources and Social Development Canada). A recent New Brunswick Court of Appeal decision, Human Rights Commission v. Potash Corporation of Saskatchewan, Inc. found that a retirement plan is bona fide as long as it is made in good faith. This rejects the Supreme Court’s three part test for Bona Fide Occupational Requirements (BFORs) outlined in the Meiorin case.

A Department of Justice study says that, in the debate over mandatory retirement, there are three important things to look at These are the rights of older workers, employers and the broader community (Mandatory Retirement and the Canadian Human Rights Act, Naresh C Agarwal). There are other issues as well, such as the aging workforce, the shortage of skilled workers and the impact of the baby boomer generation.

There should be no doubt that mandatory retirement is discriminatory, “the discriminatory practice,” is the term used by the judges in Potash. It is age discrimination, and it can greatly and negatively effect those forced to retire. Evidence has shown that, “mandatory retirement may cause major economic and non‑economic hardship to those older workers who would have continued working if they had not been required to quit their jobs upon reaching a certain age.”(Agarwal). Agarwal adds, “if forced to retire, (some) workers face the prospects of falling into poverty.”

The workforce is shrinking as baby boomers begin to retire, and there aren’t enough people to replace them. Agarwal says, “given these trends, it would be in the economic interest of the employers and the society at large to not force retirement on those older workers who otherwise want to continue working.” There is a lot of evidence to support Agarwall. In an article about mandatory retirement and the nursing shortage in the UK, Kevin McNerney, a Royal College of Nursing official says, “nurses who want to go on working are key to the country’s growing retention crisis.” (No Need to Retire, Carol Davis). An article from thecanadianencyclopedia.com quotes David Dodge, the governor of the Bank of Canada, saying,  “he calls the policy (of mandatory retirement) ’silly’ in the face of a coming labour shortage.”

According to the Labour Law Analysis, “case law indicates that, in some circumstances, laws or government policies permitting mandatory retirement are justified under section 1 of the Canadian Charter of Rights and Freedoms,”(Human Resources and Social Development Canada). Section one says that reasonable limits on freedom can be made as long as they are, “reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society,”(The Canadian Charter of Rights and Freedoms). Mandatory retirement, except in a few cases, is not reasonable, nor has it been demonstrably justified.

The evidence in favour of mandatory retirement, in most cases, simply does not show that it is justifiable as a reasonable limit on freedom. Agarwal says, “empirical studies do not reveal a consistent relationship between age and job performance.”(Mandatory Retirement and the Canadian Human Rights Act). He adds, “far more significant performance differences exist within individual age groups than between different age groups.” To give a real world example, a study on air traffic controllers in the United States found that mandatory retirement practices were adopted based on, “anecdotal reports,” (Broach and Schroeder, 364), and without, “testimony or scientific studies,” (Broach and Schroeder, 364). Mandatory retirement has been banned in the US, except for in certain cases. Because of the stress and intellectual requirements of air traffic control, this was one of the last jobs where mandatory retirement is still allowed.  However, there is now a fight to change that practice. Some people believe in mandatory retirement because they are afraid older workers will be a safety hazard, but as that report says, there is little evidence to prove that assumption. With this lack of empirical evidence, it is very difficult to make an argument in favour of mandatory retirement.

There are several reasons some people advocate mandatory retirement. Some companies are afraid that older employees will hang on forever, doing little work but drawing pay and benefits and, increasing their pension. Some are afraid older workers will keep jobs from younger workers. These claims are unfounded. Agarwall says, “elimination of mandatory retirement is not likely to render organizational human resource planning more difficult.” (Mandatory retirement and the Canadian Human Rights Act). In other words, removing mandatory retirement would not take jobs away from new hires or lead to a massive cost in supporting older, unproductive workers. Agarwall adds that a lot of people retire before the maximum age, and,  “only a very small number of older workers decide to delay retirement beyond age 65 and those who do stay on do so for only a short period of time.”

With these facts in mind, it is easy to see that across-the-board mandatory retirement is not needed. Instead, it can be applied as a BFOR on a case-by-case basis. That way, employers in jobs where age may play an important role, such as firefighting, can set their own standard for retirement.

There is another option that is even better then applying mandatory retirement as a BFOR. Adopting  minimum physical fitness and health standards, instead of setting a maximum age would work well. It can remove workers of any age that are not fit for their jobs. It will also allow older workers who can still perform their jobs to continue to work. Many jobs, say in the military or police force, already have these fitness standards.  A study of the physical fitness of firefighters in a major city the United States showed that, “38% of fire fighters aged 40 to 45, 60% aged 50 to 55, and 96% aged 60 to 65 would be considered poor in their overall fitness for fire fighting..” (Aging and the Fitness of Fire Fighters, Saupe, Kurt, Sothmann, Mark, et al.) These results suggest that a mandatory retirement age may not be a bad idea when it comes to firefighting. However, since a large number of firefighters well under retirement age had a poor fitness rating,  minimum physical and health requirements would be much more effective at removing unfit workers of any age. It would also allow the few firefighters in good shape at 65 to keep their jobs. Either adopting a case-by-case BFOR standard or having certain jobs adopt a physical and health fitness test would greatly cut back on discrimination, help with the worker shortage and still get older workers out of their jobs when they are no longer fit.

Mandatory retirement is discriminatory. It is not the best method for removing ineffective workers. Removing mandatory retirement would not cause undue hardship on employers, or risk the health of the public. In jobs where age may have more of an impact on performance, fitness standards can be adopted, or mandatory retirement be allowed as a BFOR. As such, mandatory retirement should be banned in Canada.

Works Cited:

Broach, Dana and Schroeder, David J. “Air Traffic Control Specialist Age and En Route Operational Errors.” International Journal of Aviation Psychology 16.4 (2006): p363-373, 11p. 19 November 2007. <www.lib.unb.ca>

Davis, Carol. “No Need to Retire,” Nursing Standard 22.3 (2007): p72, 1p. 19 November 2007

<www.lib.unb.ca>

“Mandatory Retirement and the Canadian Human Rights Act.” Department of Justice Canada. Agarwal, C. Narash.. 17 November 2007. <http://doj.ca/chra/en/retire1.html>

“Mandatory Retirement in Canada.” Human Resources and Social Development Canada. 17 November 2007 <http://www.hrsdc.gc.ca/en/lp/spila/clli/eslc/19Mandatory_Retirement.shtml>

New Brunswick Human Rights Commission v. Potash Corporation of Saskatchewan, Inc. NBCA 74. Supreme Court of Canada. 2006 <http://www.lancasterhouse.com/decisions/2006/july/NBCA‑Potash.pdf>

Saupe, Kurt, Sothmann, Mark, et al. “Aging and the Fitness of Fire Fighters: The Complex Issues Involved in Abolishing Mandatory Retirement Ages.” American Journal of Public Health 81.9 (2007): p1192-1194 3p. 19 November 2004 <www.lib.unb.ca>

“The Canadian Charter of Rights and Freedoms.” Justice Canada. 19 November 2007.

<http://laws.justice.gc.ca/en/charter/>