Employment is fundamental to ensuring equal participation and equal opportunity in society. It has a direct bearing on a person’s economic status while the person is in the workforce and afterwards. Therefore, any examination of age discrimination in employment must consider the effects of practices and policies on the person while they are working as well as after they have retired. It must also consider the effect on society as a whole.
Employment is not just related to economic considerations. For many people, employment is fundamental to their sense of dignity and self-worth. It promotes independence, security, self-esteem and a sense of participating in the community. Discriminatory treatment and involuntary termination of employment therefore have an effect that is more than financial.
Most individuals and organizations that participated in the consultation were concerned with age discrimination in employment. Many people reported having been affected by employment related age discrimination, either themselves or through a family member or friend. They described the hardship and sense of loss that accompanied being excluded from the workplace due to age. Others expressed a sense of moral outrage at the fact that persons can be forced to retire at age 65 and that those who do continue to work after 65 lose human rights protections against age discrimination.
Mandatory Retirement and the Lack of Protection for Workers over 65
...there are significant public policy reasons to re-examine mandatory retirement at this time to determine whether the arguments based on social utility should continue to justify what is otherwise a discriminatory practice.
Mandatory retirement is age discrimination. Making a decision solely on the basis of age, and not on the basis of a person’s ability to perform the essential duties of the job, is a form of unequal treatment. As a society, we would not find it acceptable to terminate someone’s employment in such a fashion if the reason were related to another ground in the Code such as race, sex or disability. Therefore, there are significant public policy reasons to re-examine mandatory retirement at this time to determine whether the arguments based on social utility should continue to justify what is otherwise a discriminatory practice.
No law in Ontario requires persons to retire at any age. In theory, employees can work until they no longer wish to do so or are incapable of performing their jobs. However, many workplaces have retirement policies that require all employees to retire at age 65. These may arise out of collective agreements negotiated between the employer and union or as a result of an employer’s personnel policies. For the reasons discussed below, employees who do not wish to retire at 65 have no means to challenge the collective agreement or personnel policy. This means that in effect, an employer can impose mandatory retirement at 65.
The Ontario Human Rights Code defines “age” as:
s. 10(1) “age” means an age that is eighteen years or more, except in subsection 5(1) where “age” means an age that is eighteen years or more and less than sixty-five years.
The restricted definition of age means that the Commission cannot receive a complaint of age discrimination in employment from someone who is 65 or older. This means it is not contrary to the Code for employers to require employees to retire at age 65 (or older) and employees cannot challenge this practice. Similarly, workers who continue to be employed cannot complain if their employer treats them differently (e.g. in remuneration, benefits, hours, vacation etc.) on the basis of their age.
Restricted definitions of age, or other exceptions in human rights legislation that permit mandatory retirement at age 65, have been the subject of several challenges under the Canadian Charter of Rights and Freedoms. In all of the cases, the Supreme Court of Canada has upheld mandatory retirement. In one case, the Supreme Court considered the definition of "age" in the Ontario Code and found that, mandatory retirement policies do discriminate on the basis of age but are a reasonable limit on the equality rights of older persons (McKinney v. University of Guelph (1990)).
Since court challenges have been unsuccessful, in order for mandatory retirement to be made illegal, it is necessary to amend the Code. Only the Legislative Assembly of Ontario can amend the Code. In a 1977 Report, Life Together: A Report on Human Rights in Ontario, the Commission recommended that the definition of age be amended to remove the upper limit so that the ability to perform the job would be the only criterion for determining when a person should leave employment. That suggestion was not acted upon by the Legislature at that time.
The Impact of Mandatory Retirement
Many individuals and organizations told the Commission that imposing retirement has a significant financial impact. People expressed a fear that they would lose their homes, face a significant drop in their standard of living or even find themselves in a state of poverty. Consultees noted that they are responsible for supporting others, such as family members with a disability or university-aged children, and that they will not be able to do so if they are no longer permitted to work. They are very worried about the consequences of their retirement on their loved ones.
Mandatory retirement can have a particularly serious financial impact on some persons. Women have traditionally played a caregiver role and stayed at home to raise or care for family members. At the same time, women who are part of the paid labour force tend to work in sectors where employer pension plans are not available, are more likely to work in part-time or temporary employment and earn considerably less then men. Women are therefore doubly disadvantaged: they have no income and no Canada Pension Plan (CPP) contributions for the years they do not work and for the years that they do work, they are unlikely to be able to build up CPP, RRSP or private pension plan credit to retire to a decent standard of living. They are, therefore, at real risk of being forced into poverty as a result of mandatory retirement (see section on Age & Gender for statistics on low income and gender). Moreover, women who took time off for family responsibilities may have to retire just as they reach the peak of their careers.
One woman described returning to employment in her 50s, after having raised a family, as a result of marital breakdown. Her employer did not have a mandatory retirement policy, however, one was instituted as she was approaching age 65. She retired on a very inadequate pension and her request to keep working in a situation that would enable her to still contribute to the pension was denied. However, after retirement, she returned to work with the same employer on a contract basis . She is no longer entitled to contribute to her pension, is no longer eligible for paid vacation and has no job security.
Recent immigrants face the same difficulties as they may have a shorter period of employment in Canada upon which to build a pension. They, along with visible minorities and Aboriginal persons, also tend to have restricted access to the labour market and lower incomes. Similarly, persons with disabilities also tend to experience greater unemployment and lower wages during their working lives.
There are other reasons why persons may experience hardship if forced to retire. People are starting their families later in life, or are starting a second family, and may have dependant children when they reach the age of 65. Rising education costs mean that it is not unusual for parents to assist their children through college and university. Many employees need to maintain their earning power through this time and beyond to ensure an adequate standard of living for themselves upon retirement.
The financial impact of mandatory retirement has been described as follows:
“This year [our son] completed university and has been accepted and started post graduate studies in Pharmacy. Because I will be forced to retire June 22, 2002 my son will be forced to take on extra debt and I will have to dip into my savings to help him for his final two years.” (Alfred J. Herman)
“...I will only have 24 years credit in their pension plan, hardly enough to retire on. Presently I have one daughter just finished university, another daughter in university and a son beginning community college, therefore at this time saving for retirement is extremely difficult.” (James G. Watson)
“If I should not be able to find gainful employment in the future solely on the criteria of my being over 65 years old, I will lose the capability of keeping my home.” (Don Pelz)
Being told that one is no longer a valued employee, solely because of one’s age, has a profound psychological and emotional impact. Indeed, many commented that they had either themselves experienced, or observed in others, a real loss of interest in life’s activities after being forced to retire.
“The singular most important element in human mental health is their work or what they do. A strong argument can be made that forcing retirement on people is directly affecting their health, an issue that is right at the core of human rights.” (Ken Shields)
The impact on human dignity is best illustrated using the words of consultees:
“Did you ever feel like an old pair of worn out shoes? Well that can happen. You feel rejected and no longer of any value in the workplace or your community.” (Mervyn Morley)
“My new subsidized income, along with my feeling of professional uselessness has shown me one thing, the reality of how society views and treats the aging.” (Grace Watson)
“The psychological trauma that is associated with forced retirement could be easily avoided if we are given a choice.” (Michael Nippalow)
Many people noted that treating someone who was a good employee at age 64 as incompetent the day they turn 65 is irrational: “To arbitrarily declare that at age 64 you are capable of work and at age 65 you are no longer capable of work is ridiculous and discriminatory” (Raymond Carter).
Re-examining Mandatory Retirement
To demonstrate the arbitrariness of age 65, one participant described the story of how it was selected:
“Count Bismark was asked to provide a pension for retired government clerks and asked...by what age are most of them dead? He was told 65 and he said, fine, 65 will do.” (Prof. Irwin Pressman)
In addition to the negative impact of mandatory retirement on individuals, and other human rights based considerations, there are several compelling reasons to re-examine mandatory retirement at this time. In fact, we must seriously reconsider the wisdom of forcing the retirement of people who wish to continue working.
Aging population: As the baby-boom generation ages, in the next few years there will be a significant number of persons approaching age 65. Moreover, due to longer life expectancies, people are living significantly past age 65 (on average about 20 years past 65). This means that the utility of requiring people to retire at 65, an age designated at a time when it was rare to live that long, must be questioned. In 30 years, almost one quarter of Canada’s population will be 65 and older (Prof. C.T. Gillin & Prof. Thomas R. Klassen). Having fewer workers support retired persons over a longer period of time will likely have significant ramifications for our economy.
Economic considerations: The Commission was repeatedly told that common sense dictates that it is better for society to reap the benefits and contributions, in particular tax revenues, of having people working rather than drawing income from the state.
Labour shortages: Labour shortages are currently being experienced in certain sectors, such as health, education and construction, and this is predicted to increase when the baby-boom generation retires. For example, the Commission was told that in the context of university professors: “[We] can’t find qualified people...there is a huge shortage of qualified people available, and at the moment we are forcing them to retire here.” (Faculty Group, Carleton University). A recent newspaper article reports that retirees are being enticed back to work to address shortages of skilled labour.
A related concern can be described as ‘brain drain’. The Commission was told that highly skilled and qualified older workers are moving to the United States so that they will not be subject to mandatory retirement. The result is a significant loss to workplaces, hospitals, universities and society as a whole (Faculty Group, Carleton University). Ontario must examine policies, such as mandatory retirement, that are causing talented, experienced people to relocate.
Trends in the United States and Internationally: Other countries, most notably the United States, New Zealand and Australia have eliminated mandatory retirement without major consequences. The Commission was told that the greater productivity and the lower unemployment rate in the United States has been attributed to more flexible labour market regulation (Prof. C.T. Gillin & Prof. Thomas R. Klassen). The experience of other countries demonstrates that eliminating mandatory retirement in Ontario should not prove as problematic as some would argue.
The United Nations has said that state parties to the International Covenant on Economic, Social and Cultural Rights, should expedite the trend towards the elimination of mandatory retirement. The Group of Eight leaders have noted the need to foster the economic participation of older persons. Given that Canada is a State party to the Covenant and a member of the Group of Eight, Canada should take a leadership role in acting upon these recommendations.
Promoting Fairness: In addition to the unfairness inherent in being excluded from the labour force on the basis of age, consultees noted other issues of fairness. Some employers allow workers to stay on past 65 while others do not. Therefore, two people performing essentially the same job can find themselves in completely different circumstances. In some cases, employees are hired back to do an identical job but without many of the benefits of full-time, regular employment. Moreover, many commented that for the majority of their tenure with an organization, there had been no mandatory retirement. They found it unfair that their employer, and in some cases their union, could impose such a significant change to the terms and conditions of employment as they approached age 65.
Many individuals and organizations noted the irony that some of the most powerful, respected and influential persons in Canada, including the Prime Minister and other politicians, judges and senators, are not subject to mandatory retirement at age 65. Many of these people are over the age of 65 and are valued for their years of experience. Numerous people commented that this sort of ‘double standard’ is not acceptable.
Justifications for Mandatory Retirement
It is necessary to examine common justifications for mandatory retirement to see if they are sufficiently compelling to offset human rights concerns.
To facilitate planning: An argument has been made that mandatory retirement is necessary to allow employers to plan for their staffing needs. However, it does not appear to the Commission that this rationale has relevance in today’s highly dynamic workplace. Mandatory retirement at 65 arose when workers tended to work full-time for the same employer for many years. Now employees are highly mobile. Leaves of absence related to pregnancy, illness and professional development are commonplace. Moreover, even with mandatory retirement, many workers choose to retire before age 65 and the timing of early retirement varies from person to person. As one author has noted:
...uncertainty is inherent in the running of most organizations. In the area of human resources specifically, turnover, absenteeism, disability and death are all uncertain, probabilistic flows that organizations have to cope with. General approaches, processes and techniques that are used by organizations to forecast these flows can be adapted to forecast the delayed retirements that may occur under flexible retirement policies.
Therefore, it does not appear that this rationale is sufficiently sound to justify mandatory retirement.
To promote job opportunities for youth: This argument is largely based on impression rather than evidence. In other words, people simply assume that mandatory retirement will facilitate the hiring and promotion of younger workers. However, this assumption may not reflect reality. One author notes that no study can be cited to demonstrate that the termination of older workers through mandatory retirement directly caused the hiring of younger ones.
In workplaces and jurisdictions that do not have mandatory retirement, very few workers choose to stay past age 65 and those who do tend to retire within a year or two. Moreover, this argument relies on the “lump-of-labour” fallacy: that there are a fixed number of jobs that must be allocated among workers so that “every job held by an older worker is one less job available for a younger one”. The workforce does not function in this fashion and older workers are rarely retiring from jobs that younger workers are seeking. Moreover, opportunities for younger workers exist without having to retire older workers. In many fields there are shortages of workers and employers are unable to find employees to fill positions. This will be discussed further in the next section.
In addition, as many people have noted, arguing that discrimination against one group is acceptable as it promotes opportunities for another group is offensive to human rights principles. Society has not accepted this argument in other contexts, for example the claim that any job occupied by a woman is one less job for a man. Given that age discrimination can have the same financial, psychological and emotional impact as any other type of discrimination, it should not be used to justify this form of discrimination.
To ensure that workers leave with dignity: Employer representatives told the Commission that mandatory retirement allows older workers to leave the workforce with dignity. If mandatory retirement is abolished employers will be obliged to manage performance and even terminate older workers who are having difficulty performing job duties. The argument is that this is a hardship both for the employer and the employee. It is said that mandatory retirement allows individuals who are under-performing to leave the workforce in a socially acceptable fashion with a level of income security. The Commission was told that employers would prefer to be able to offer the option to work past 65 where there is a need and an employee can perform the job.
The Commission also heard that mandatory retirement should not be a substitute for appropriate personnel policies such as progressive performance management. While it may mean more work for employers, performance issues of workers who are nearing age 65 should be handled in the same way they would for any other employee. Treating older workers the same way as co-workers and evaluating them on the basis of actual performance, rather than age-based assumptions, best promotes their dignity. Given the small number of workers who chose to work beyond 65, it likely that employers will rarely be forced to take performance-related steps to terminate the employment relationship.
Employees should have an equal opportunity to remain in the workforce. However, the current legal environment allows employers to re-hire selected employees under conditions that are less favourable than the pre-retirement situation. This has the potential to create a ‘second-class’ group of employees. Indeed it is of significant concern to the Commission that workers who do remain employed after age 65 cannot make a complaint of age discrimination if subjected to unequal terms and conditions of employment.
To control costs: A concern has been expressed that abolishing mandatory retirement will result in significant costs to employers with respect to long-term disability, group life insurance and pension contributions. It is also argued that if employers cannot rely on mandatory retirement and must terminate employees who cannot perform their duties, they will have associated costs, for example severance pay and the cost of defending wrongful dismissal suits. It was noted that since a number of programs and systems rely on age 65 as the retirement age, a sweeping review of laws and policies will be needed.
The Commission agrees that these issues would require further consideration and that a revision of several statutes and programs may be necessary. Nevertheless, this should not represent an obstacle to reconsidering mandatory retirement. To the extent that increased costs to the employer may be an issue, it can be addressed. For example, the Code and the Employment Standards Act already allow some distinctions to be made on the basis of age in pension and group insurance plans.
Options for Dealing with Mandatory Retirement
The Commission was told that employees want choice and that retirement should not be seen as an ‘all-or-nothing’ proposition. Rather, flexible or phased-in retirement should be the goal. This could involve part-time work, job sharing, moving to a different job, such as a consultant or trainer, or being assigned new responsibilities.
Employers will not be required to retain employees who are unable to perform the essential duties of the job. However, those who wish to continue working should be permitted to do so, regardless of their age, if they can perform their jobs. Employers should adopt performance management programs and apply progressive performance management to all employees regardless of age. Employers who wish to have a blanket retirement policy, at any age, will be required to demonstrate that the policy is based on bona fide occupational requirements (e.g. as is the case with current policies that require firefighters to retire at age 60).
Some have suggested that there should be no upper limit on how long a person can work and that the ability to perform the job should be the only consideration. Others have suggested moving the retirement age from 65 to 67, 70 or 75. However, in the Commission’s view, a blanket mandatory retirement defence set at any age can raise identical human rights and public policy concerns as compulsory retirement at age 65. As individuals live longer and healthier lives and demonstrate an extremely variable range of physical and mental abilities, it appears that age-based retirement benchmarks will be difficult to justify.
Abolishing mandatory retirement should not result in people being penalized if they choose to retire before age 65. It is not intended that a review of mandatory retirement will result in an expectation that people should continue to work longer. Rather, it is merely intended to allow those who want to continue to work to have that choice.
Lack of Protection for Workers Over 65
The Commission is very concerned that persons who are not subject to mandatory retirement and who continue to work past age 65 cannot bring a complaint of age discrimination in employment. Given that more people may find themselves in this situation, particularly in light of demographic trends and labour shortages, this has the potential to affect an increasing number of people. It the Commission’s view that it could not have been the intention of the Legislature to exclude this category of workers from human rights protections and that steps should be taken to address this anomalous situation.
Recommendations for Government & Community Action
13. THAT the Code be amended to eliminate the blanket defence to mandatory retirement at age 65 and to extend protection against age discrimination to workers over 65. This could be done by removing the upper limit of 65 in the definition of “age” in section 10(1). Employers who wish to have age-based retirement policies will be required to demonstrate that the policy is based on bona fide occupational requirements. Laws and programs that require consequential adjustment should also be reviewed.
14. THAT, irrespective of whether the Code is amended, employers and unions reconsider the utility and necessity of requiring employees to retire at age 65 and revise their retirement policies and collective agreements to promote flexibility and choice.
Workplace Age Discrimination
The input received on workplace age discrimination served to confirm the problems identified in the Commission’s Discussion Paper. In particular, many reported that stereotypes and negative attitudes towards older workers (starting as early as age 45) are commonplace in the workplace. This includes assumptions that older workers are less ambitious and hardworking, less dynamic and unable to learn new things. People reported being denied training opportunities and opportunities for advancement and being terminated because of age. Others recounted the difficulties they had in finding employment due to their age. The Commission heard about job-seekers colouring their hair and removing years of experience from their résumés in order to appear younger.
Many people agreed that older workers bear the brunt of workplace reorganization and downsizing. Others commented that being asked whether a person would like to retire might be interpreted as “being pushed to make the decision” (The Canadian Association of the Deaf).
During the consultation process, the Commission heard that older workers would like to be given the same opportunities as everyone else to demonstrate their skills and abilities and to be treated as valued members of the organization without ageist stereotypes or assumptions being applied. They would like to be hired, trained and promoted at the same rates as their younger counterparts.
Several of the individuals and organizations consulted stressed the need for the Commission to educate the public and employers about ‘myths and realities’ with respect to older workers. This is necessary to assist employers but also to ensure that co-workers do not treat older employees with disrespect. The following are examples of common myths and realities:
Myth: Job productivity declines with age.
Reality: Some productivity decrease is observed with some types of work but not others. In some work settings, studies show older workers are more productive than younger ones. Overall, chronological age accounts for minimal differences in job performance.
Myth: Older workers decline in physical capacity.
Reality: While there is some decline in physical capacity, a supportive work environment can overcome the effects of this change and age is not necessarily a limiting factor in physically demanding work even through the 60s.
Reality: There is some slowing down with age in reaction time and speed of performance, but older workers do as well or better than younger workers on creativity, flexibility, information processing, accident rates, absenteeism and turnover.
Myth: Older workers can’t learn new things.
Reality: With appropriate training methods and environments, they can generally learn as well as younger workers.
Other suggestions included encouraging employers to be ‘45+ friendly’ and acknowledging those who are supporting older workers. The benefits of employing older workers should be stressed. For example, older workers may be settled in a community and may stay longer in a job, they may have fewer family commitments because children have grown and they may be more receptive to part-time work or job sharing (Halton Region’s Elderly Services Advisory Committee (ESAC)).
With respect to investigating human rights complaints, several tools were suggested to distinguish between age discrimination and legitimate decisions based on non-discriminatory reasons: evaluating the ratio of 45+ employees to total employees, looking at the number of employees who have held employment in the company for over 15, 20, 25 or 30 years, reviewing the number of 45+ employees who have been hired and tracking the resumes received from 45+ candidates to see if they are receiving equal consideration (Diana Ward, Award Personnel).
Several consultees noted that employees themselves need further information about what constitutes age discrimination and their rights and recourses if they find themselves in such a situation: “Older workers may not be cognizant of the fact that they are being discriminated against in relation to their age. The may actually lack awareness of ageism issues” (Wendy Draper).
The Commission is grateful for these suggestions and will consider them further as it develops its public policy statement on age discrimination.
Recommendations for Government & Community Action
15. THAT employers take steps to ensure that workplace policies and procedures do not have an adverse effect on older workers. Workplace human rights policies and education programs should address age discrimination and harassment.
16. THAT workplaces should be free of ageist assumptions and stereotypes and employers should ensure that older workers are afforded the same opportunities as their younger counterparts. The value of older workers should be recognized.
3. The Commission will engage in public awareness activities to educate employers and employees about their rights and responsibilities under the Code, to dispel the myths that are often associated with older workers and to encourage employers to view older workers positively.
  3 S.C.R. 229.
 Ontario Human Rights Commission, Life Together: A Report on Human Rights in Ontario (Toronto: Ontario Human Rights Commission, July 1977).
 See Canadian Race Relations Foundation, Unequal Access: A Canadian Profile of Racial Differences in Education, Employment and Income (Report prepared for Canadian Race Relations Foundation by the Canadian Council on Social Development, 2000).
 A. Lawlor, “Retired but in demand” St. Catharines Standard (30 April 2001).
 In particular, General Comment No. 6: The Economic, Social and Cultural Rights of Older Persons, United Nations Committee on Economic, Social and Cultural Rights, E/C.12/1995/16/Rev.1.
 From the Kyushu-Okinawa Summit Meeting, 2000, G8 Communiqué, 23 July 2000 cited in submission by Prof. D. Gorham, Faculty Group, Carleton University.
 N.C. Agarwal, Mandatory Retirement and the Canadian Human Rights Act (Prepared for the Canadian Human Rights Act Review Panel, October 1999) at 19. Reproduced with the permission of the author.
 Ibid at 21.
 Agarwal, supra note 25 and submission provided by Diana Ward, Award Personnel.