Mandatory retirement is a thing of the past, but employers in certain occupations are still allowed to enforce it
Do you know when you will retire? Do you want to or do you have to?
Many people have an idea of when they plan to retire from working life and enjoy their golden years. But many others don’t, whether it’s because of financial uncertainty or the fact that they just like working and don’t know what they would do with themselves if they didn’t have that in their life. Either way, since mandatory retirement was scrapped across Canada a decade or more ago, depending on the jurisdiction, it’s the individual’s choice when they want to wrap up their career — with a few notable exceptions.
In most jurisdictions, age is one of the grounds protected by human rights legislation, so mandatory retirement is considered discriminatory. However, most legislation allows for discrimination if it is related to a bona fide occupational requirement of the job. If the employer can prove that reaching a certain age can limit an employee’s ability to perform a job safely for themselves or the public, then it can be allowed to require retirement at a certain age and thus discriminate against employees based on their age.
Physically demanding occupations with potentially hazardous situations such as that of a firefighter have certain standards for performance that people would be less able to meet as they get older and the increased risk of medical issues. This means municipalities are allowed under human rights legislation to set a required retirement age for firefighters in their collective agreements and likely avoid successful discrimination complaints.
A decade ago, Ontario legislated that all salaried firefighters in the province must retire at age 60 after some human rights decisions referring to the increased risk of cardiac event beyond that age. Both government and firefighter associations were favour of the move — the average age of retirement for a firefighter at the time was 57.
The door was left open for individuals to request accommodation with medical evidence based on their individual circumstances, but the onus would be on the individual to provide proof to warrant the exception. In 2012, the Ontario Human Rights Tribunal dismissed several discrimination claims of firefighters requesting individual accommodation on the basis that they didn’t provide evidence of exceptionally low or minimal risk of cardiac events for their age and the employer did not have an obligation to develop a testing regime to prove it. The tribunal stated that there was no obligation to accommodate in the absence of such medical evidence: see Corrigan v. Mississauga (City), 2013 HRTO 1313.
The Ontario tribunal reached the same conclusion recently when it upheld a mandatory retirement provision for volunteer firefighters who performed the same duties as full-time, salaried firefighters: see Lemay v. Tecumseh (Town), 2021 HRTO 536.
The position of airline pilot is another occupation where mandatory retirement is allowed due to the importance of certain skills that are known to decline with age and the increase of health risks. Ten years ago, the Canadian Human Rights Tribunal upheld Air Canada’s mandatory retirement at age 60 for pilots after two of them challenged it. After the case went back and forth between the tribunal and the Federal Court, the tribunal found the policy wasn’t discriminatory. The requirement to retire at 60 was a bona fide occupational requirement and it would be undue hardship for the airline to allow the pilots to continue working when international aviation rules also required retirement at 60, said the tribunal.
The traditional idea of people retiring at a traditional age such as 60 or 65 is technically a thing of the past, but there are certain industries where it is still expected and where employers can legally still require it. But, as with any potential ground of discrimination under human rights legislation, there is a high bar to prove that the avoiding the skills decline and health risks of a certain age is a necessary requirement for the job — and the individual isn’t able to do the job.
