Until 2008, many employers, both in the private and public sectors, had mandatory retirement “policies” requiring employees to retire at age 65. Effective January 1, 2008 the BC legislature eliminated mandatory retirement when it enacted amendments to the Human Rights Code. The Code prohibits discrimination based on age. Before 2008, “age” was defined as younger than 65, so requiring persons older than age 65 to retire was permitted. Now, policies of this sort are contrary to the Code and legally null.
The result is that employees now have no artificial end date for their employment. Typically, if there is no effective, pre-existing contractual term that provides for mandatory cessation of employment at a time certain, the only legal way for the employer to terminate the employment is by providing reasonable working notice of termination. Employers will face real challenges in circumstances where they wish to terminate the employment of aging workers. If an employer gives working notice of termination in circumstances where any part of the motivation is found to be a desire to be rid of an older worker, there would be a risk of a finding of discrimination contrary to the Code. If an employee is dismissed and it is determined in a complaint to the Human Rights Tribunal that the discharge was discrimination based on age, the employer could be ordered to reinstate the employee, with up to full “back pay”, and additional compensation for breach of the employee’s basic human rights.
Employers have a duty to accommodate age related disabilities as well, unless it would be unduly difficult to do so. Employers can legitimately make distinctions based on the age of workers only if they can demonstrate a “bona fide occupational requirement” to do so. A bona fide occupational requirement is a legal standard that makes distinctions on certain grounds, including age, but that is allowed because of the nature of the employment. To demonstrate the existence of a bona fide occupational requirement an employer must establish that it held an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose, which is a difficult burden to meet.
The bottom line is that in most cases there will be no effective way to force elder workers to retire based on their age.
Employers should be careful to avoid discriminatory conduct based on age.