FAQ - Mandatory Retirement
This article appeared in our February 2005 newsletter.
Effective January 1, 2008, B.C.'s human rights legislation was amended to prohibit the practise of mandatory retirement. See the B.C. Ministry of Attorney General's website for information and FAQ materials.
Dialogue on mandatory retirement seems to be gaining momentum. Ontario is currently engaged in public consultations on the issue and in their recent Speech from the Throne, the B.C. Liberals indicated British Columbians may soon be asked to engage in dialogue on the issue as well. Mandatory retirement raises important human rights considerations but it also encapsulates economic, labour and social policy concerns. Thus, these larger issues must be incorporated into any substantive human rights analysis.
When mandatory retirement evolved in Canada, it did so alongside the development of public and private pension schemes; it was not imposed on individuals as a result of a law or a government regulation. When public pension plans were first established, their goal was to provide a degree of social security to older persons through the guarantee of a state income. Age determined eligibility and was first pegged to age 70, lowering to age 65 by the 1960’s. By the early 70’s, we had a number of income security plans in place and the notion that age 65 was the ‘normal age of retirement’ was rooted. Since then, the normal age of retirement has been reflected in, and continues to influence a broad range of public policy issues and programs including social security programs, economic, and labour market policy and programs.
To a large extent a similar phenomenon occurred with private pensions. As private plans proliferated and individuals or their agents successfully bargained these benefits, private plans grew to adapt to, and complement the public social security structure. In many cases, this meant entitlement at age 65 and many of these private arrangements encouraged, and many required, mandatory retirement. With the growth and acceptance of private pension plans came a host of employment and labour market practices that depended upon an acceptance of a set age of retirement as a means to manage the workforce. For example, knowledge of a set date of retirement provided employers with the ability to plan for their financial obligations in regards to pension plans and other employee benefits. It also provided a landscape that allowed hiring, retraining, promotion, disciplinary, and wage system practices that were built upon knowledge and acceptance of a set date of retirement. For employees, knowledge and acceptance of a set date of retirement enabled them to plan for, and retire with dignity. By and large, society regarded retirement at age 65 as the norm. Even the Supreme Court of Canada ruled mandatory retirement was a reasonable limit to place on the equality rights of older workers back in the 1990’s.
Beyond minority groups (such as women, people with disabilities and new immigrants to Canada), who for years have articulated the adverse effects mandatory retirement has had on their ability to accrue pension benefits on equal footing with others, much has changed in the landscape for other workers in Canada as well. People are living longer, they are healthier and they want to continue contributing in meaningful ways, which for some includes continuing to work. Other individuals simply cannot afford to stop working at age 65. Both groups demand choice and input as to how and when they retire. Employers have turned their attention to implementing recruitment and retention strategies encouraging older workers to remain in the workforce in order to meet the increased demand and as a means to alleviate the effects of a shrinking labour force. All this is changing the landscape and the attitudes around retirement practices.
From a human rights perspective we support a retirement structure that provides choice, flexibility and options for everyone. We do suggest this new structure requires strengthened human rights protections in the workplace and a corresponding commitment that the changing landscape will not alter the foundation or the adequacy of our social security system. To guarantee Canadians that shifting practices will not result in either an increased age of entitlement or an alteration to the amount received in public pensions is a rather large guarantee to deliver on. As more than one level of government holds responsibility for social security, economic and labour market policy, the commitment must be well coordinated, equally supported, and we would suggest, enshrined in legislation. Today’s promises hold little value tomorrow.
The landscape in B.C.
Although we don’t know how many British Columbians are actually affected by mandatory retirement clauses, we do know many have positions that challenge the issue. We also don’t know how large the trend towards working beyond age 65 really is. We do know those choosing to remain in the workforce may come into conflict with age sensitive employment practices that are deeply embedded in our psyche and often practiced as a matter of course. Assumptions and stereotypes based in age are abound and often result in older workers being unfairly perceived and treated. To ensure a proper balance around this changing landscape, we urge the provincial government to recognize and afford the same human rights protections to older workers that are currently afforded to their younger counterparts.
To do so, the government must lift the age cap in our human rights legislation. Currently, protection against age discrimination in employment is only provided to British Columbians up to age 64. Effectively this restricts people beyond that age from filing complaints of any form of age discrimination – including mandatory retirement - with the B.C. Human Right Tribunal (those over age 64 can subject mandatory retirement to separate court challenges. These are usually framed as Section 15 challenges. ) That means older workers have no recourse under human rights legislation should their employer choose to treat them adversely based on their age. Unfortunately, decisions as to who gets fired, laid-off, or fazed out, are sometimes unwillingly influenced by the age of the workforce. Who receives promotions, training, or consideration as a potential candidate may also be influenced by age. These scenarios are likely to present themselves more often as more older workers remain in the workforce.
The Coalition has long argued that our current age cap is under-inclusive in relation to our equality rights, and we urge those participating in the retirement dialogue to bring this concern to the government’s attention. B.C. is one of four provinces (Saskatchewan, Ontario and Newfoundland are the others) that still utilizes an age cap as a mechanism to restrict human rights protection in the area of employment. It is high time British Columbians are afforded the same protections as other Canadians; and protections that more closely reflect our equality rights as set out in the Charter of Rights and Freedoms.
B.C. also utilizes an exemption clause in its human rights legislation. This clause shields employers from human rights complaints as they relate to bona fide retirement, superannuation or pension plans. Most Canadian jurisdictions have a similar exemption, which effectively permits mandatory retirement, so long as the practice is part of a larger retirement plan. If we were to lift the age cap, but kept the exemption, the practice of mandatory retirement could still be shielded from complaints, so long as the practice is part of a larger retirement plan. To eliminate blanket mandatory retirement policies from being imposed on workers, this exemption would also have to be lifted.
This would still allow employers to implement and incorporate retirement strategies, which in some cases may still include encouraging the workforce to retire at a set age. The difference however, would be that the practice would be subject to an employer’s duty to accommodate where individuals preferred to remain in the workforce past that set age. Put another way, the blanket rule of requiring all employees to retire at age 65 would have to stand up to the test of bona fide occupational requirement (BFOR) in order to justify the rule. Accommodation as a process provides choice, flexibility and options for everyone. Where an accommodation imposes undue hardship on the employer, the employers’ legal duty would be discharged. At the same time, some occupations that require retirement at a set age have, and will likely continue to, stand up to the BFOR test. Historically, these occupations have included those where public safety is an issue, such as in the case of firefighters and police.
Retirement norms, perceptions and practices are interwoven into the social fabric of our country. The issue of mandatory retirement is complex and involves a wide array of stakeholders. From a human rights perspective we think individuals should have a choice and a right to have input into their retirement, but we want to ensure that this does not effect social security entitlements. Although it may be easy to spot the discrepancy between allowing for the practice of mandatory retirement and achieving substantive equality for older workers, the issue itself deserves careful consideration and a comprehensive analysis. The Coalition plans to continue to build upon our current understanding and analysis of this issue. As research is concluded we will continue to share our findings with others.