Mandatory Retirement and Airline Pilots

The Canada Human Rights Tribunal has reinstated two Air Canada pilots who had been forced to leave their employment due to a mandatory retirement provision in a collective agreement calling for retirement at the age of 60.  Here is the Globe and Mail story.  It’s a long and rather complicated legal dispute.  I’ll give a relatively quick synopsis.

The Charter Issue
The remedy decision was released this week, but the actual decision ruling that the provision in the Human Rights Act permitting these sorts of contract conditions was a violation of Section 15 of the Charter came down in late summer. The section at issue is s. 15(1)(c) of the HRA, which says this:

It is not a discriminatory practice if: c) an individual’s employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual;

The Tribunal had earlier ruled that s. 15(1)(c) did not violate Section 15 of the Charter, finding that age 60 was the “normal retirement age” of pilots. That decision was overruled by the Federal Court on review, which found that mandatory retirement permitted by section 15(1)(c) of the Act violates the equality section of the Charter.   The Court ruled:

Paragraph 15(1)(c) of the Canadian Human Rights Act denies older workers … the equal protection of the law that has been described by the Supreme Court of Canada as “the final refuge of the disadvantaged and the disenfranchised’.  In so doing, paragraph 15(1)(c) of the Act has the effect of perpetuating the group disadvantage and prejudice faced by older workers in this country.  Viewed both objectively, and from the subjective perspective of Messrs. Vilven and Kelly, the statutory provision promotes the perception that older workers such as Messrs. Vilven and Kelly are less worthy and less deserving of the equal protection of the law than are younger workers who lose their jobs for age-related reasons at an age below the normal age of retirement for a particular type of position. Moreover, the statutory provision can only serve to perpetuate the stereotypical view that older workers are less capable

The Court sent the matter back to the Tribunal to consider if the violation of Section 15 of the Charter could be justified under Section 1 of the Charter as a reasonable limitation in a free and democratic society.
The Tribunal found that the violation could not be justified under Section 1.  An interesting part of these decisions is how quickly opinion on the value of mandatory retirement has transformed.  In 1990, the Supreme Court upheld the mandatory retirement of professors  (McKinney v. U. of Guelph) principally on the basis that the forced retirement struck a reasonable balance between complex competing societal interests, and that it was “part of the very fabric of the organization of the labour market” of Canada.  In unionized workplaces, MR allows unions to bargain “deferred compensation” schemes that pay workers more in the twilight of their careers, something employers are prepared to do knowing that the employee is leaving at age 65.  MR also ensures a turnover of jobs, so young people have job  mobility.  Abolishing MR would put all this at risk.
In this new case, the Tribunal found that the fabric of Canada has changed considerably since 1990.  According to the Tribunal, permitting workers to be retired against their will solely on the basis of their age is no longer a pressing and substantive objective, so that Section 15(1)(c) fails the first branch of the Oakes test for assessing Section 1. The Tribunal noted academic evidence that abolishment of MR in most provinces since 1990 has demonstrated no negative impact on “deferred compensation systems” and that today there is more concern about pending labour shortages than there is concern about creating openings for young workers.  Moreover, it turns out that even when MR is abolished, most people still retire voluntarily at about age 62.
The Tribunal also found that the method used in Section 15(1)(c), allowing retirement based a “normal retirement date” in an industry is not rationally connected to the public policy objective of permitting negotiation over retirement dates.  This is because there is no guarantee the normal retirement date will be “negotiated” under this model.  A large employer in an industry could just fix a normal retirement date for its employees, and that date would then become the “normal retirement age” for all other employees in the industry.
Nor does Section 15(1)(c) satisfy the “minimal impairment” branch of the Oakes test.  A less intrusive model is that used in Ontario (and other provinces) that permits age discrimination when “age” is a bona fide occupational requirement, and accommodation short of undue hardship is not possible.  [See, e.g., Section 24(1)(b) of the Ontario Human Rights Code].
Finally, Section 15(1)(c) also fails the proportionality test, because:

In the Tribunal’s view, the negative effects of the infringement of depriving individuals of the protection of the Act outweigh the positive benefits associated with s. 15(1)(c).

So Section 15(1)(c) was found to violate Section 15 of the Charter’s protection against discrimination on the basis of “age”, and this was not saved by Section 1 of the Charter.
The Bona Fide Occupational Requirement Issue
But that did not end the matter.  The employer then argued that MR of pilots at age 60 was allowed by a different section of the Human Rights Act, section 15(1)(a), which says that it is not discriminatory to refuse employment based on a “bona fide occupational requirement”, provided that there is no way to accommodate the workers without the employer or union suffering “undue hardship”.
Here both the air pilots union and Air Canada teamed up to argue that forced retirement of pilots at age 60 is a BFOQ and accommodating pilots over age 60 would cause both the employer and union undue hardship.  The union wants the ability to bargain retirement age, and claims that 82% of the pilots want the retirement age left at 60.  Should a union be entitled to discriminate against a minority of members because the majority thinks this is a good idea?
The alleged hardship to the ER was based on international rules of flight, which require pilots over the age of 60 to be accompanied by a pilot under the age of 60.  Air Canada says this would create scheduling and financial nightmares.  The union argued that allowing pilots to stick around would “water” down the seniority benefits of younger pilots who had planned their careers based on the assumption of opportunities and benefits in the latter period of their careers.
The Tribunal rejected the union’s argument, because it was not convinced any major problems would result from allowing pilots to work past age 60, except that younger pilots make take longer to get ahead, a concern that the Tribunal did not believe justified age discrimination.  It also rejected Air Canada’s “undue hardship” argument, finding no strong evidence that this would create the sorts of serious financial implications the employer alleged.
The Globe story indicates that the union challenged the Federal Court’s ruling that Section 15(1)(c) of the Act violates the Charter and that this matter is to be heard by the Federal Court of Appeal later this month.  So this story may not be over.