Forced retirement: a form of age discrimination?
Queries from older workers inundate Canada's human rights commissions

Virginia Galt: Workplace Reporter
Saturday, May 22, 2004
Globe and Mail

TORONTO -- Jim Lyons sodded the front lawn this week. He has done a beautiful renovation job on his home. His wife, Virginia, has a long to-do list to keep him busy. But Mr. Lyons, who turned 61 today, would rather be fighting fires. He misses the speed, the excitement, the split-second decisions, the opportunity to help people. He even misses the hours -- "I love shift work."

Fit and powerfully built, Mr. Lyons was nonetheless pensioned off from his job as a fire captain last year when he turned 60 -- a forced retirement that he is now challenging before the Ontario Human Rights Commission. What really burns Mr. Lyons is that former colleagues in the Toronto Fire Department can continue on active duty until their 65th birthdays.

Mr. Lyons was caught in what his lawyer, Raj Anand, calls "an accident of timing." When the six former municipalities that made up Metropolitan Toronto amalgamated in 1998, three of the fire departments had mandatory retirement at 65 and three, including the Etobicoke department where Mr. Lyons worked, compelled firefighters to retire at 60. Seven months after Mr. Lyons was pensioned off, the fire department harmonized the collective agreements and established 65 as the mandatory retirement age across the board.

With the increasingly high profile being given to age discrimination -- and comments by Prime Minister Paul Martin and others that people should be able to work as long as they are capable -- human rights commissions have been flooded with queries from older workers.

Age discrimination is not always easy to prove, said Mr. Anand, a Toronto-based human-rights lawyer and a former chief commissioner of the Ontario Human Rights Commission. With Mr. Lyons, however, Mr. Anand believes he can make a clear case that his client's rights have been violated.

The fire department takes the position that Mr. Lyons's retirement was required under a provision of the old collective agreement. The commission does not comment on cases under investigation and the deputy fire chief responsible for personnel issues could not be reached for comment. Mr. Lyons and the fire department could not reach a mediated settlement, so the case is now being investigated by the commission.

Meantime, Mr. Lyons is working out, keeping fit -- and hoping that his human rights case does not drag on until such time as he really is too old to do the job. Mr. Lyons is by no means the only Canadian caught in the shift. With the prime minister in favour of more relaxed retirement rules, and the Ontario government planning public consultations on the issue, Canada's Association for the Fifty-Plus is getting a steady stream of calls from older workers concerned that they will be pensioned off before the laws change, said spokeswoman Judy Cutler. "We've had several calls from people saying: 'Is it going to happen soon, because I'm turning such and such an age in a month, in a year. Am I going to fall between the stools?' "

Whether people can be forced out depends on where they live, she said. In Alberta, Manitoba, Northwest Territories, Nunavut, Prince Edward Island, Quebec and Yukon, mandatory retirement is considered discriminatory under the law, the association advised in a recent issue of its magazine.

In New Brunswick, Newfoundland and Labrador, retirement at a set age is not considered discriminatory if it is part of a retirement or pension plan agreement. If no such plan exists, a worker can complain on the basis of age discrimination under human rights legislation.

In Nova Scotia, workers can be forced to retire "if this is a standard practice in the relevant workplace," the association said.

In Ontario, British Columbia and Saskatchewan, the human rights codes do not protect workers over 65, so they cannot file a complaint about being forced to retire if they are that age or older.

For employers who operate under federal jurisdiction, a worker can be forced to retire at the customary retirement age for those performing the same type of work. Ontario Premier Dalton McGuinty has announced plans to introduce legislation to eliminate mandatory retirement in the province. In the meantime, however, employers can require their employees to retire through the use of written employment contracts, collective agreements or corporate policies, Toronto-based law firm Torys said in a recent newsletter.

Human rights commissions across the country are also seeing an increasing volume of age-related complaints. A North American survey by on-line job service Yahoo! HotJobs found that 87 per cent of respondents 55 and older felt that potential employers held their age against them, "despite the fact that discrimination on the basis of age is illegal."

The Ontario Human Rights Commission has launched a campaign against age discrimination advising older employees that they have the same rights to employment, training and promotion as anyone else. In a recent brochure advising employees and job applicants of their rights, the commission said older workers should not be subjected to such comments as:
"Do you really think you could handle this job? You know it takes a lot of energy and enthusiasm. Besides, we are looking for someone with career potential."
"You don't need this training program. At your age, what would the benefit be?"
"Well, you are getting on. What do you expect at your age?"

Some older job applicants have complained to the Ontario commission after being turned down on the grounds that they are overqualified or have too much seniority -- euphemisms, one complainant said, for "you're too old." Mr. Lyons, a director of training and a fire captain before leaving his job, said a lot of expertise walks out the door when employees retire.

It takes years of experience to learn to make the right decisions in a crisis and lead a fire team, said Mr. Lyons, who believes he still has a lot to offer. "I wasn't ready to retire. I enjoyed my job. It was very exciting, very fulfilling. Firefighting is my life." WORKPLACE REPORTER

Experience counts
Many employers sing the praises of older workers, placing high value on their expertise and experience. Nonetheless, many older job seekers still feel that prospective employers hold their age against them, says Mike Boydell, president of Toronto-based on-line employment service Yahoo! Canada HotJobs.

"While discrimination is often subtle and difficult to prove, there are steps older job seekers can take to protect themselves and successfully market their skills," said Mr. Boydell, who offers the following tips to help older workers find new jobs:

Know your rights (as shown on photograph above):
Be familiar with applicable federal and provincial human rights legislation. Understanding the legislation makes you more knowledgeable, and can increase confidence.
Keep skills current: Taking courses or recertifying at least every five years will ensure that you keep abreast of developments in your field and have adapted to them.
Put a positive spin on age: Remember that age can be the qualification that sets you apart from the competition. There are jobs out there where age and experience count, especially in the professional sector.
Communicate your qualifications in interviews: Stress that you are fully qualified as opposed to overqualified. It better reflects that you are the right person for the job.
Virginia Galt

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