Mandatory retirement based on age appears to be equitable and non-discriminatory. It requires all to take leave at age 65; the rule - Rule 65 - applies without variation, and therein lies the rub. The attempt to be equitable and non-discriminatory by enforcing Rule 65 opens the gate for inequitable and discriminatory practices against one or more of our human rights.
The Supreme Court of Canada has dealt with age discrimination, including mandatory retirement, on various occasions. Notwithstanding their learned judgments, the issue of how age can be used to discriminate indirectly along other variables, such as gender or race, is very much an open question. Rule 65 acts as a 'surrogate' variable to discriminate along gender lines, and most likely along racial, national or ethnic origin, color, religious, mental or physical disability lines as well.
To see how Rule 65 acts as a surrogate to discriminate along other human characteristics, it is only necessary to examine one variable. Gender has been selected because it is generally conceded that, on average, women and men have unequal life spans. For the purpose of presenting the argument, it is assumed that, on average, women live to be 85 and men live to be 80 years of age.
Because of their longer life expectancy, women must contribute significantly more to their pension plan by the time they are 65, if they are to be as financially secure as a man in the same situation. Women have to contribute enough for 20 years while men have to contribute enough for only 15 years. Why should women be discriminated against in this manner?
Conversely, why should women be entitled to 20 years of retirement, while men only get 15? But the 15 to 20 years of retirement is not a choice - it is mandated by Rule 65. Some women may prefer to work to age 70 with a more financially comfortable retirement of only 15 years; some may prefer to retire at 65 with the full 20 years of retirement.
Similarly, some men may prefer to work to age 65 with only 15 years of retirement while others may prefer to retire at 60 and have 20 years of retirement. But for men, retiring at 60 may not give them a very financially comfortable retirement.
Rule 65 does not cut cleanly. And from each individual's perspective, it probably appears to cut each of us the most deeply. The grass always appears to be greener on the other side. So, how is this very complex issue to be resolved without some portion of the population being discriminated against?
The discriminatory effect of Rule 65 can also be seen in the Canadian aboriginal community. A recent information release by the Yukon Executive Council Office, Bureau of Statistics, states that the life expectancy of a newborn aboriginal female is 69.2 years and for a non-aboriginal female it is 76.3 years. The difference is 7.1 years or 10.3 per cent.
It also states that the life expectancy of a newborn aboriginal male is 61.7 years and for a non-aboriginal male it is 70.3 years. The difference is 8.6 years or 13.9 per cent. Extrapolating to the rest of Canada's population is risky, but the point can be made that there is empirical evidence to show the expected period of retirement varies greatly across race with any arbitrarily set age for mandatory retirement.
These data might be perceived by some as an argument for retaining mandatory retirement but at an arbitrarily defined earlier age. Such a suggestion would miss the point. Retirement should be voluntary. It should not be based on any arbitrarily defined age.
Retiring at 65 may have been the norm years ago when life expectancy was somewhere between 60 and 70 years, when men were the primary source of family income, when divorces were rare, and when children were expected to provide for their parents in their later years. But not only does life expectancy far exceed 60 or 70 years (depending on which group or groups you were born into), but we are probably healthier than we were years ago and are capable of leading productive lives well beyond 65.
If Rule 65 is removed voluntarily or by legislation, there may be some who suggest those older than 65 should have to undergo a post-65 review if they are to be entitled to the rights and privileges afforded those under 65. But performance and competence is not an age issue. One must be competent to perform one's duties regardless of one's age. If one is incompetent, he or she cannot expect to have that incompetence remain unchallenged merely because he or she is under 65.
Conversely, one should not expect to have his or her competence challenged merely because he or she is more than 65. This point is made because there is a perception by some that age is inversely correlated with competence. The youth-age perception difference was succinctly put by Victor Hugo when he said, "Forty is the old age of youth; fifty is the youth of old age." In any case, to suggest a review or an examination because of one's age is just another case of age discrimination.
How is the discriminatory effect of Rule 65 to be removed? One could suggest the mandatory retirement age be set so each person receives the same proportion of retirement time, based on her or his expected life span. This is really not very practical and does not necessarily remove the discrimination. Implementation of a voluntary retirement policy must be done with care and follow a protocol that is beneficial for both employers and employees. The outdated approach to retirement of "one size fits all" is certainly inappropriate in a culture where longevity varies substantially between groups.
What must be avoided in implementing a voluntary retirement policy is any protocol which continues to result in circuitous discrimination. For example, having to receive the approval of a committee if a person is to be entitled to work past 65 is age discrimination directly, and gender and racial discrimination indirectly.
If the argument against Rule 65 is sound, there is no reason to conclude those opposed to discrimination along gender or racial lines (or any of the other variables listed in The Canadian Bill of Rights) would support Rule 65. For one to support Rule 65 and at the same time to support non-discrimination in general certainly seems to leave one in the uncomfortable position of advocating contradictory positions.
Until someone comes forth with a more equitable and non-discriminatory solution, voluntary retirement is the best solution to a most difficult problem.
Lloyd Spurrell and Ahmed Hussein are professors at the University of Northern British Columbia.
The views expressed are those of the authors and not necessarily those of CAUT.