Mandatory Retirement Policy at Canadian University Ruled Discriminatory

A university policy forcing employees over the age of 65 into mandatory retirement was revoked as age discrimination by a Prince Edward Island human rights panel.

According to the Canadian OH&S News, on Feb. 18, 2010, the PEI Human Rights Commission (HRC) ruled in the favor of three former University of Prince Edward Island (UPEI) employees, who filed complaints against the institution in late 2005 and early 2006 for age discrimination.

When they turned 65, the three employees, a employed for 23 years; a professor of anthropology and sociology employed for 32 years; and a shipping and receiving worker with a 20-year employment record, were all told their last days of work would be at the end of the year.

The psychology professor tried to file a complaint against the mandatory retirement policy in the mid-1990s, but was told he was not permitted because the policy did not yet affect him.

In the decision, the university argued that under Section 11 of the province’s Human Rights Act (HRA), they were allowed to enforce mandatory retirement as a function of the university’s pension plan.

However, the HRC struck down this claim, ruling that the policy “does not affect the operation of the pension plan” and the university failed to show a “mandatory retirement age is a ‘genuine occupational qualification’ or a ‘genuine qualification,'” as required by the HRA. The panel gave the parties 45 days to review the decision and provide submissions for remedy.

“The main purpose behind (the policy) for the university was one that had to do with our planning process and, more specifically, with the renewal of people in the university setting,” said Peggy Leahey, UPEI’s director of human resources. “You want new ideas coming through and changes,” adding that retired faculty are often invited to stay involved with the university through teaching and research.

However, Jeffrey Goodman, a partner at the Heenan Blaikie law firm in Toronto, commented that this kind of justification for discrimination is why protective legislation exists in the first place. “The whole purpose of a human rights statute is to avoid people applying generalizations,” he said. “Just because someone’s new doesn’t mean they’ll have more ideas than a person who’s been there for 20 years,” he said adding that cases must still be looked at on an individual basis.

Goodman also pointed to the tenure system in universities as potentially problematic in terms of dismissal, saying — “The tenure system is almost like being in a union,” he stated. “It becomes very problematic to actually remove someone once they’re a tenured professor, so they almost need to have the ability to make them retire, because the ability to do so for other reasons is almost restricted because of . . . the collective agreement between the professors and university.”

One of the professors said he was happy with the HRC’s ruling, and looks forward to his eventual return to work. (workersxzcompxzkit)

“The implications aren’t just for the teaching population. I think it’s for all of Prince Edward Island – that workers cannot be fired simply because they’ve reached a certain age,” he said. “As far as teaching goes, it means that the university may be able to hold onto its most experienced professors somewhat longer than they otherwise would have.”