Mandatory Retirement Feb 2010 Update

Would you believe that a 27 word clause in the Canadian Human Rights Act actually allows employers to force older workers to retire?

“Ironically, it is the human rights statutes that still protect mandatory retirement provisions in federally regulated workplaces. It is legislated age discrimination.” says Susan Eng, CARP VP of Advocacy.

CARP has been working to have governments- provincial and federal- rescind legislative provisions that allow employers to retire their employees at age 65, but some victories are only partial because certain jurisdictions continue to allow mandatory retirement if collective agreements and pension plans require it. Last year CARP sent open letter to the Prime Minister as well as all the Premiers urging them to prohibit age discrimination in pension plans. To read the open letter as well as read some of the responses we received, please click here.

But while a few dwindling provinces still allow pension plans to create discriminatory situations, the Canadian Human Rights Act still allows employers to terminate employees because they have reached the “normal age of retirement” for employees working in similar positions. This means that mandatory retirement is openly permitted in federally regulated industries and that it affects some 840, 000 workers, or, 10% of all Canadian workers.

As human rights should be universally protected, this creates an unacceptable circumstance.

The federal government is violating older workers’ right to choose when they want to retire, which is central to the protection of their equality, the promotion of their dignity, and the enhancement of their financial security. Forced retirement based solely on age amounts to a violation of older workers’ human rights.

Forcing people to retire despite being willing and fully qualified to continue working is age discrimination. So with the recent decision of the Canadian Human Rights Tribunal that mandatory retirement offends the Charter, it should just stop, right? Well, not so fast.

CARP has been following the landmark Vilven & Kelly case. George Vilven and Robert Kelly are two airline pilots who were forced to retire and decided to fight back by taking their case to the courts. They lost earlier cases but won in a landmark Federal Court case in 2009. To read more on this, click here click here.

In finding that section 15(1)(c) of the CHRA violates the Charter, the Court said the provision “can only serve to perpetuate the stereotypical view that older workers are less capable, or are less deserving of recognition or value as human beings or as members of Canadian society.”

But now, rather than accepting the Tribunal’s ruling, Air Canada is appealing the decision and taking a narrow legal interpretation of the decision’s effect, suggesting that the decision applies only the two pilots who brought the case before the Tribunal.

Meanwhile, the pilots’ union, the Air Canada Pilots Association, instead of remaining neutral, is supporting the age discrimination against the older pilots so that younger pilots can get ahead. Recently the dispute has become ugly, complete with nasty blog criticisms posted by the younger pilots and effigies mocking the older pilots. What kind of workplace environment will the reinstated pilots face?