Mandatory retirement as a Bona Fide Occupational Requirement

The Ontario Code and other human rights legislation permit discrimination on the basis of age where it is a reasonable and bona fide qualification because of the nature of the employment, the so-called bona fide occupational requirement or BFOR defence^[84]. Accordingly, where employers impose mandatory retirement at an age less than 65^[85], a complaint can be brought under the Code and the issue then is whether the employer can establish that age is a BFOR.

The test for a BFOR in the context of age discrimination was established by the Supreme Court in an Ontario case, Ontario Human Rights Commission v. Etobicoke^[86]. In that case, the complainant was a firefighter who was forced to retire at age 60.  McIntyre J. set out the following test to determine whether a mandatory retirement scheme is justifiable:

(1) Subjective component: the employer must establish that mandatory retirement was imposed honestly, in good faith, and in the belief that the limitation is in the interests of the adequate performance of the work, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code.

(2) Objective component: the employer must establish that the retirement plan is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.

With respect to the second element, a scheme based on economics, i.e. related to productivity, will be much harder to justify than one based on public safety:

In cases where concern for the employee’s capacity is largely economic…it may be difficult, if not impossible, to demonstrate that mandatory retirement at a fixed age, without regard to individual capacity, may be validly imposed under the Code.^[87]

To establish the scheme on the basis of public safety, the Court must consider whether the evidence justifies the conclusion that there is sufficient risk of employee failure in those over the mandatory retirement age (in this case, 60) to warrant setting retirement at that age in the interests of safety.^[88]

In a similar case, Large v. Stratford (City) ^[89], the Supreme Court considered a mandatory retirement policy that required police officers to retire at age 60.  The policy had been adopted and included in the collective agreement in response to the demands of the police union. The Supreme Court found the policy discriminatory but justifiable on the basis of the BFOR defence.  The Court noted that the purpose of the subjective component of the defence is to ensure that employers adopt the rule for a valid reason.   Courts should not apply it in too rigid a fashion, for example by insisting on evidence as to the employer’s state of mind.  In this case, the policy was as a result of a negotiated term of a collective agreement and if the employer acted honestly and without any ulterior motive in entering into the collective agreement, as in this case, the subjective element is satisfied.  With respect to the objective component, the Court stated that justification of a general rule that treats all employees as having the same characteristics is dependant on proof by the employer that it is not practical to identify and exempt from the general rule those who lack the requisite characteristics.  An employer can discharge its obligation by showing that individual testing is impractical.  In this case, the employer adduced evidence of the combination of cardiovascular disease and decline of aerobic capacity sufficient to satisfy the objective branch of the test.

In MacDonald v. Regional Administrative School Unit No. 1^[90], a Board of Inquiry upheld mandatory retirement of school bus drivers at age 65.  Expert medical evidence indicated that, as a group, those over 65 are more likely to have accidents, and that it is impossible to test individually to determine who is likely to have health problems or create risks for others. 

In several other cases, mandatory retirement has been found to be a BFOR^[91]. In others, the employer has not met the onus of satisfying both parts of the Etobicoke test.  In Gerlach v. Canada Trust Co.^[92], the mandatory retirement of a switchboard receptionist was found to violate the British Columbia Human Rights Code as no evidence was presented to substantiate a bona fide occupational requirement.