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Occupational Requirements and Older Workers

The elimination of mandatory retirement at age 65 has already begun to have one predictable effect. Employers are struggling to figure out how to ease older employees, who may no longer be able to safely perform their job, out of the workforce.
 
This is the result of changes made to B.C.’s Human Rights Code, effective in January of 2008. The key change was that human rights protections were extended, in the employment context, to persons who are 65 years of age or older. 
 
As a result, retirement policies triggered solely by advancing age are now illegal. Employers can still discriminate on the basis of age against persons younger than 19 but, when it comes to older employees, employers are no longer able to rely on the simple fact of aging.
 
An exception to that rule occurs when the employer can demonstrate it is a bona fide occupational requirement for the employee to be a certain age. Demonstrating the existence of a bona fide occupational requirement, however, is no easy task.
 
Human rights tribunals are very experienced in sniffing out the difference between knee-jerk reactions – what I sometimes call “Archie Bunker-isms” - and objectively provable evidence regarding an individual’s capabilities. Employers should be prepared to put forward as much expert evidence as they can find.
 
An example of how an employer might approach this challenge may be found in a 15 year old case from Prince Edward Island. MacDonald was a school bus driver who had been compelled to retire upon reaching age 65. He complained pursuant to the P.E.I. Human Rights Act and, in 1992, a Board of Inquiry considered his case.
 
The Board cited the general description of a bona fide occupational requirement which originates with the Supreme Court of Canada: it must be imposed honestly, in good faith and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons.
 
The MacDonald case demonstrates there are two ways for an employer to demonstrate that an individual is no longer capable of performing a job. It may provide individualized testing data pertaining to the particular employee in order to screen her out of the workforce. The alternative is to provide generalized information relating to the group of people in a particular age category to demonstrate that all people in that group pose an unacceptable risk.
 
The employer, Prince Edward Island School Unit No. 1, chose the latter option. It produced expert medical testimony regarding the risks inherent in operating a school bus after the age of 65. The evidence could be broken down, generally, into two categories.
 
The first expert testified as to the increased likelihood of heart attack in persons over the age of 65. He relied on medical studies for the conclusion that the risk of coronary artery heart disease increases rapidly after age 55 and that men over 65 are 30 times more likely to have it than those in the 35 to 44 age group.
 
The evidence was that, by age 56, well over 50 percent of men have at least fifty percent obstruction in one or more of the branches of the coronary arteries leading into the heart. The evidence went a step further to show that the rate of heart disease is particularly high in P.E.I. and
 
The physical effects on the driver of a crisis while operating a school bus, combined with the impact of heavy efforts such as shoveling snow off the roof of a bus at the beginning of the day, created the real risk of a heart attack.
 
As a result, the medical expert concluded that mandatory retirement at age 65 was reasonably necessary for the performance of the job without endangering the safety of the public. The evidence was that there were no medical tests available to determine which particular drivers would be more susceptible to the risk of heart attack.
 
The second expert testified about the normative changes of aging in the areas of vision, problem solving, multi-tasking, and response time. The evidence was that visual acuity diminishes over time, as does our capability to solve problems and to pay attention to two tasks at the same time. In addition, the amount of time required to respond to a situation increases. 
 
Evidence from studies was put forward indicating an increase in traffic accidents and traffic violations as people age (even though older people are more selective about when, where, and in what conditions they drive). Drivers in the 65 and over age group were said to be twice as likely (as the best performing age group) to have an accident.
 
This expert agreed that age 65 is a reasonable retirement age for school bus drivers to ensure the safety of the employee, the children on the buses, and the general public. He indicated that only primitive tests existed to screen out these diminutions of a particular individual’s capabilities. 
 
As a result of this evidence, the Board of Inquiry determined that it was a bona fide occupational requirement for school bus drivers, in P.E.I., to be 65 years of age or under. The School Unit was not required to rehire Mr. MacDonald.
 
This case stands as a good example of the standard of proof required to convince a human rights tribunal that it is a bona fide occupational retirement to be 65 or younger. My feeling is that now might be a very good time to be an expert on the medical effects of aging.
 

 
Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log on to http://www.pushormitchell.com/.