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MANDATORY RETIREMENT DISCUSSION PAPER
Stemming from discussion at the June 2002 Board meeting, the OCUFA Board decided to
undertake a study of mandatory retirement so as to obtain further information about 1)
salaries of members before and after the age of 65; 2) the potential introduction of
post-tenure performance review; and 3) the impact on planning and replacement
procedures within programs. Special regard was to be made to obtain information about
the experiences of university faculty associations in provinces where there is no
mandatory retirement legislation (Quebec, Manitoba, Alberta and New Brunswick). ...
OCUFA has a long standing policy position opposing mandatory retirement. In fact, OCUFA
was one of the principles in a landmark case on mandatory retirement. In June of 1985,
the OCUFA Board members passed a motion to pursue test cases on mandatory retirement
in conjunction with CAUT and the other provincial faculty associations. ... Notwithstanding,
while all the justices agreed that mandatory retirement fundamentally violates the
Charter, five of the seven ruled that the violation was a Areasonable limit@ on an
individuals rights. The two dissenting justices were women, who argued that mandatory
retirement was particularly unfair to women and other underprivileged groups who often
start their academic careers later in life.
It needs to be pointed out that the courts have supported the mandatory retirement of
individuals even where the human rights code prohibits discrimination on the basis of age.
A significant case in this regard was that of Olive Dickason who was a tenured full
professor at the University of Alberta and was forced to retire at the age of 65 because
of a mandatory retirement clause in the collective agreement between the university and
its academic staff. The province of Alberta did not at that time (and still does not) have
mandatory retirement legislation in place. ... Dickason filed a complaint with the Alberta
Human Rights Commission alleging that her forced retirement was in violation of the
Individuals Rights Protection Act by discriminating against her on the basis of her age. ...
The objectives of mandatory retirement were stated to be the
preservation of tenure, the promotion of academic renewal, the
facilitation of planning and resource management and the
protection of "retirement with dignity" for faculty members. ... The impugned
retirement practice is rationally connected to the objectives
cited. The retirement of faculty members at the age of 65
ensures that the university may readily predict the rate at which
employees will leave the institution and that positions are opened
for new faculty. Mandatory retirement also allows the university
to renew its faculty by introducing younger members who may
bring new perspectives to their disciplines. ... In the university setting, mandatory retirement
also withstands the minimal impairment test. ...
Recent events have brought mandatory retirement the forefront of the public policy
agenda. The Ontario Human Rights Commission in a paper published in June 2001 entitled
Time for Action: Advancing Human Rights for Older Ontarians, which argues that
mandatory retirement should be revisited as a public policy issue.
Also, there was a recent decision by British Columbias Court of Appeal which determined
that mandatory retirement policies of public bodies must be justified on a case by case
basis. ... , was not definitive of the constitutionality of all retirement policies
in the private sector, and does not relieve the employer of the responsibility to establish
that its policy of mandatory retirement is justifiable under the Charter. ...
Current Canadian Context
The situation with regard to mandatory retirement in those provinces where it has not
been legislated by the government is complex. Despite the lack of a legislated retirement
date, many of the universities have negotiated mandatory retirement policies, which are
part of faculty collective agreements, and which are strictly adhered to. The New
Brunswick Human Rights Commission provides an interesting example of the mixed
messages surrounding mandatory retirement. ... The most notable in the context of this
paper is that mandatory retirement is allowed when it is provided for by a pension plan. ...
Thomas University, as well as Mount Allison University all have collective agreements or
stated university policies which specify the normal retirement date for professors and
academic workers as 65.
The Universities of Alberta, Athabasca and Lethbridge all participate in the Universities
Academic Pension Plan and have a normal retirement age of 65. The situation with
Manitoba universities is similar, where the legislature has passed a law which notes that
academic staff would be the only group who could be subject to the age discrimination
inherent in compulsory retirement, if it were negotiated at the university level. In most
cases the universities provide the opportunity for faculty members to continue teaching in
some, usually part-time, capacity after retirement, but they are no longer considered or
paid at the same level as prior to retirement.
In Quebec, the universities have generally not negotiated mandatory retirement into their
collective agreements with faculty and academic staff. ... To varying degrees, the Boards of Governors at McGill, Concordia and
Bishops Universities have offered early retirement packages to try to entice older,
higher-earning professors to retire, and have articulated their frustration with the fact
that universities are constantly challenged by a shrinking budget. It is interesting that
Quebec seems to be the lone province that has no legislated mandatory retirement, but
where the universities have not found a way around the provincial mandate through the
collective agreements.
US Context
A federal law mandating the elimination of mandatory retirement in the United States was
passed in 1987. The implementation date of the legislation was January 1994, though a
recent study shows that less than one quarter of academic institutions waited until 1994
to officially end mandatory retirement. ... Recent studies of the experience of US academic
institutions since the abolition of mandatory retirement have found that there has been
little effect on the probability that faculty retire prior to normal retirement age. ...
In 2000 the Committee on Retirement of the American Association of University Professors
conducted a Survey of Changes in Faculty Retirement Policies of a large national sample
of colleges and universities. The statistics and information about the American experience
with the elimination of mandatory retirement presented here are from this AAUP study, as
well as a subsequent TIAA-CREF Institute publication citing the same survey. The goal of
the 2000 survey was to glean information on the characteristics of regular retirement
programs for tenured faculty, the existence and nature of retirement incentive programs
and phased retirement programs for tenured faculty members, on institutional policies
relating to retired faculty, and on institutions perceptions of the impact of the end of
mandatory retirement on their faculty. ...
The issue of early retirement or financial incentive to retire is an important one. ... 2% of the responding institutions had one or more financial incentive
program instituted since the abolition of mandatory retirement in 1994 which encouraged
tenured faculty members to retire prior to age 70. ...
Some faculty members find the prospect of abruptly ending their academic careers very
distasteful, and this is likely to induce them to postpone retirement. With regard to the
gradual transition into retirement, the survey found 27% of responding institutions had
formal programs to permit tenured faculty members to retire gradually by working
part-time for a number of years before they formally retire. ... The study found that almost all of the institutions permitted
their retired faculty to teach after retirement on a part-time basis, although about half of
the institutions indicated that only some retired faculty were permitted to teach. ...
Many faculty members contemplating retirement would like to continue to teach on a
part-time basis after they retire. ...
The survey found that only 22% of the institutions that responded indicated that the
number of tenured faculty members continuing in full-time employment after age 69 was
greater than prior to the institutions elimination of mandatory retirement. Most
respondents reported that they did not believe that the abolition of mandatory retirement
has caused more tenured faculty members to remain in their positions until a later age. ... For public institutions in the US, the study found that those which made
contributions to retired faculty members health insurance and/or have a phased
retirement program were more likely to have reported that an increasing share of their
faculty are now staying on beyond the normal retirement age of 70.
References
"The Survey of Changes in Faculty Retirement Policies. ...
"Faculty Retirement Policies after the End of Mandatory Retirement". ...
Up to the Top
hallenging Mandatory Retirement : Whats Age Got
to Do With It? ... That means that the applicants cant
use the charter to overturn the Universitys retirement policy. ... The
government was also trying to control the effect of retirement on
the labour market and pension plans. ... The law tries to provide protection for both the employment
needs of younger workers and the needs of people over the age of
65 for stability in pension plans and retirement conditions. ... It is found that many people would be negatively affected by
eliminating mandatory retirement. ...
In the end, mandatory retirement is a legitimate attempt to
balance the rights of Ontarians both young and old. ... 32 of the Charter of Rights and Freedoms
Mandatory Retirement and the Canadian
Human Rights Act
Prepared by Naresh C. ... Part I examines the key substantive
issues involved in the debate on whether or not mandatory retirement policies
should be eliminated and replaced by flexible retirement policies. ... Part II presents data on the incidence of mandatory
retirement policies among organizations in the federal sector and the
perceived impact of eliminating these policies. ...
Part III provides an analysis of the current legal situation concerning
mandatory retirement in Canada. ... First, it
includes an overview of those provisions of human rights legislation which
specifically pertain to mandatory retirement. Based upon this overview, a
comparison is made between the CHRA and other human rights legislation in
Canada with respect to exceptions under which mandatory retirement is
permitted. Second, the analysis provides a discussion of the leading court
decisions handed in recent years on the legality of mandatory retirement.
Finally, Part IV outlines some policy options for amending the CHRAs
provisions concerning mandatory retirement and provides a brief commentary
on these options.
Discussions of mandatory retirement and age discrimination generate
controversy because of the need to balance the rights of older workers with
those of the employers and the broader community at large. ...
First, 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. ... Because of their prior career history,
many of these workers may not have sufficient retirement income from public
and employer pension plans, and personal RRSPs. ... 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,
and even encourage other older workers to remain in the labour force. ... Fourth, elimination of mandatory
retirement is not likely to render organizational human resource planning more
difficult. Removing a fixed age of retirement would not cause the estimates of
future retirement flows needed for organizational planning to become any
more uncertain than what they already are. Even under mandatory retirement
policies, the evidence indicates that a large number of workers choose to
retire before reaching the age at which they are required to retire. Estimating
the likely number of early-retirees is as difficult and uncertain, if not more,
than what the case would be with estimating the likely number of those who
may delay retirement under flexible retirement policies. If the available
evidence is any indication, the number of older workers opting to take early
retirement is likely to far exceed the number of those opting for delayed
retirement. Fifth, eliminating mandatory retirement would not have much of an
impact on employment opportunities for younger workers. Experience of
employers and jurisdictions that do not have mandatory retirement shows that
only a very small number of older workers decide to delay retirement beyond
age 65 and those who do stay on for only a short period of time. Finally,
mandatory retirement is not the norm in the federal sector. As the survey of
organizations in the federal sector conducted for this study shows, only about
one-fourth of the federally regulated, private sector organizations still have
mandatory retirement policies for all their employees. ... No mandatory retirement policy exists for
public servants who form the largest component of the workforce. Only
certain selected occupational groups such as uniformed personnel in the
RCMP and the Canadian Armed Forces are still subject to mandatory
retirement.
The overall conclusion that can be drawn from the above findings is that the
potential costs of eliminating mandatory retirement in the federal sector are
likely to be relatively minor and transitory. ... Thus, one can conclude that mandatory retirement should
be eliminated in the federal sector. ... Where this situation has been proven to exist, continuation of
mandatory retirement would be justified as an occupational requirement to
ensure efficient, economical, and safe job performance.
The approach taken in the human rights legislation in Canada toward
mandatory retirement is generally consistent with the above conclusion, the
legislation in some jurisdiction being more so than in others. Under such
legislation, mandatory retirement is regarded as a form of age discrimination
and, therefore, is deemed to be illegal. However, mandatory retirement is
permitted under certain exceptional conditions. The Canadian Human Rights
Act (CHRA) provides for the following three exceptions under which
mandatory retirement is permitted:
Section 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 on a bona fide occupational
requirement;
(b) employment of an individual is refused or terminated
because that individual has not reached the minimum age, or has
reached the maximum age, that applies to that employment by
law or under regulations, which may be made by the Governor
in Council for the purposes of this paragraph;
(c) an individuals employment is terminated because that
individual has reached the normal age of retirement for
employees working in positions similar to the position of that
individual.
The following four options emerge from the discussion in Part IV concerning
the above three exceptions permitting mandatory retirement in the federal
jurisdiction:
Option 1: Maintaining status quo (retaining all
three current exceptions)
Retaining the bona fide occupational requirement (BFOR) exception presents
no problem. ...
The same, however, cannot be said about the other two exceptions allowed in
the CHRA under which mandatory retirement is currently permitted in the
federal jurisdiction. As pointed out earlier in Part III, these two exceptions are
not allowed in any other human rights legislation in Canada, thereby making
the CHRA potentially the most permissive legislation in the matter of
mandatory retirement. Under these exceptions, an employer can raise a
complete defence for its policy of mandatory retirement not only at age 65 but
also at even lower ages. ... According to this provision, mandatory
retirement at a particular age does not constitute a discriminatory practice if
that age is generally accepted as the "normal age of retirement" in a given line
of work. In its report issued in 1985, the Parliamentary Committee on Equality
Rights noted that "If industry standards were accepted as a reasonable
excuse for discrimination on a prohibited ground, the purpose of section 15 [of
the Charter] would be frustrated" and went on to conclude "that the ‘normal
age of retirement exception in the Canadian Human Rights Act cannot be
supported under section 1 of the Charter".
Option 2: Retaining the BFOR exception and
eliminating the other two exceptions
This option would certainly make the CHRAs provisions concerning
mandatory retirement consistent with those of the other human rights
legislation. However, one might argue that the general prohibition of
mandatory retirement, except as a BFOR, may cause undue hardship to
certain, albeit a few, employers. The Parliamentary Committee on Equality
Rights did recognize that "There might be some relatively narrow classes of
exceptions, in addition to that for bona fide occupational requirements, that
may be necessary to avoid undue hardship as a result of general prohibition of
mandatory retirement". ... One approach here could be to identify in advance those
employers who would suffer undue hardship as a result of a general
prohibition of mandatory retirement, except as a BFOR, and individually list
these employers in Section 15(1) of the CHRA as being exempted from such
prohibition. ... One rule, for example, could be to let the effect
of mandatory retirement provisions in a collective agreement to be preserved
until the expiry of that agreement. Another and a more general transitional
rule could be to allow an adjustment period before the changes to the CHRA
provisions concerning mandatory retirement become effective. ...
Last Updated: 2002-08-19
Importan
Mandatory Retirement
The appellant was a pilot who worked for a Canadian airline. ... Section
15(c) of the Canadian Human Rights Act states that "it is not
discriminatory practice if an individuals employment is terminated
because that individual has reached the normal age of retirement
for employees working in positions similar to the position of that
individual.
Approximate Word count = 14306
Approximate Pages = 57.2
(250 words per page double spaced)
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