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B.C. announces end of mandatory retirement

After months of anticipation, the B.C. government has introduced legislation which will render illegal employers’ policies imposing mandatory retirement at age 65.  This change, which is to become effective on January 1 of 2008, arguably ushers in a new era in employment law in this province.

The B.C. Human Rights Code has always prohibited discrimination on the basis of age.  However, that prohibition only applied to persons 19 years of age or older and less than 65 years of age.

This meant that employers could impose retirement (and a variety of other measures) with relative impunity against employees older than 65.  In effect, it didn’t matter if the retirement was being imposed solely because the person had turned 65 - the employer was immune from statutory complaints.  That will all change in January, 2008.

The revision to B.C.’s Human Rights Code to implement this change is quite simple.  The definition of “age” (previously being “19 years or more and less than 65 years”) has been amended to read “19 years or more”. 

This change means that employers can continue to discriminate (on the basis of age) with impunity against persons younger than 19.  But, when it comes to older employees, age will no longer be a permissible factor in employers’ decisions.  From hiring to pay raises to termination, employers will no longer be able to rely on aging as a factor.

In some corners, this development is being viewed as a remedy for the ongoing labour shortage.  I’d call it more of a placebo than a cure.

Nobody (at least in the private sector) who wishes to remain part of the active labour force beyond age 65 is presently prevented from doing so.  That person may not be able to find work with a particular employer (because that employer presently subscribes to the concept of mandatory retirement) but she can always ply her trade elsewhere.

There simply is no pool of willing workers out there who are presently excluded by law from the labour market.  Anyone who wants to work is able to do so assuming a job exists (and, if reports of a labour shortage are accurate, it appears many vacancies presently do exist).

Employers, of course, are not presently prevented by law from hiring workers over the age of 65.  Any employer who wants to hire older workers is free to do so, assuming there are workers who wish to be employed.

The reality seems to be that comparatively few workers leave the workforce because of the impact of an employer’s mandatory retirement policy.  Recent statistics indicate that only approximately 14% of males and 9% of females named the existence of a mandatory retirement policy as one of their reasons for retiring.

Presumably, those people were content to retire and weren’t seeking to re-enter the employment market.  If they had wanted to stay employed, it seems there were many jobs to be had.

What the abolishment of mandatory retirement is likely to do is to make all employers’ task, in bringing to an end the employment of older employees, much more difficult.  The employer will face the challenge of demonstrating the termination was in no way affected by a discriminatory attitude towards older workers.

This is no small task because any degree of discrimination is sufficient to taint the decision to terminate.  The discriminatory reason need not be the sole, or even primary, reason for the termination.

The most noticeable result in the short term may be a flood of claims of discrimination when employers terminate older employees.  Every older, terminated employee may have the basis for a claim that his employment was ended for discriminatory reasons.

Prepare to wait for five or ten years for the dust to settle.  By that time, employers will have figured out how to live with the new laws and, hopefully, the initial flood of discrimination claims will have cleared the system.  Then we’ll be able to tell what impact, if any, this change in B.C.’s law has had on the employment relationship.