The Legal And Ethical Issues Surrounding Mandatory Retirement In Canada

Mandatory Retirement and the Legal Framework

Discuss about the Process Of Mandatory Requirement.

The process of mandatory requirement is also called enforced environment. It is a process through which people holding certain officers and jobs at a certain age are asked to resign by the virtue of law or industrial custom. The process of mandatory requirement can be justified by providing an argument that a few occupations may become too dangerous for a person of a particular age group or the person of a certain age group may not possess the level of mental and physical skill required to do the Job. Another notion on which the employers rely upon is that the capability and productivity of a person declines significantly when the person reaches the age of 70 (Mulders et al., 2014). The process of mandatory requirement is introduced as a way of preventing the decline in productivity for the employer. On the other hand the age at which a person has to retire mandatorily is in most cases arbitrary in nature and is also not in relation to the evolution of person physically. Therefore the process of mandatory retirement is often treated as an act of ageism or age discrimination (Schlachter, 2011).

The thesis statement of this essay is that Mandatory Retirement in Canada is not ethical and the Employers should not be able to Force Older Employees to Retire.

The paper discusses the summery of the legal issues in relation to mandatory requirement. The paper provides an argument against the concept of mandatory retirement in the light of legal and ethical framework. The paper also provides arguments which have been made in favor of mandatory retirement process. The paper then compares and contrasts the different views to come to a proper conclusion.

In order to understand the legal framework in relation to mandatory retirement the reason why such retirement caused needs to be analyzed based on the theory of Ageism and Discrimination. Weinberg and Scott (2013) has defined ageism as the process of discrimination against and stereotyping of groups and individuals based on their age. The process may be systematic or causal. This term had been coined for the first time by Robert Neil Butler in 1969 in order to describe the discrimination which takes place in relation to seniors. According to Butler Ageism is a combination of three elements which are connected to each other. These elements are the prejudicial attitude which others have towards the people of old age and ageing process, practices of discrimination against old people and institutional policies and practices which perpetuate stereotypes in relation to elder people. Ageism is  social evil in the same was as discrimination.  Article 718.2, clause (a)(i), of the Criminal Code In Canada provides meaning as those aggravating situations among other conditions "evidence that the offence was motivated by age" (Szinovacz, 2013). Thus the concept of ageism itself is illegal in Canada which it is applied in different situations.

Age Discrimination and Ageism

Age discrimination results out of actions which are take for the purpose of limiting or denying opportunity to a group or individual based on their age. According to Botwinick (2013) age discrimination is the action which has been taken in relation to ageist belief or attitude of a person to provided unfair treatment to a person based on his or her age as compared to others. This form of discrimination takes place in both institutional and personal level. A person who is only may be directed to restrain from certain activities as they are too old to do so such as playing a physical game. On an institutional level a person who is old may be asked to quit a particular job as they are now considered an unfit to carry out the activity which has been doing as a major part of their life. This is where the process of mandatory retirement comes into the context and therefore is directly related to concept of age discrimination (Boisclair,  Lusardi  & Michaud, 2017). In Canada the provisions in relation to age discrimination can be identified in the Charter of Rights and Freedoms which is applicable on all government entities and jurisdictions. According to the equality clause contained in section 15(1) of the Charter all individuals are to be considered as equal under and before  law and must be provided the right to equal protection and benefits of the legal system without any discrimination based on national or ethnic origin, race, religion, sex, color, disability or age. All provinces along with the federal government have in place anti-discriminatory measures against age. In addition all jurisdictions consists of human rights legislations which prohibits any form of discrimination including that of age. One of such primary provisions is that which are provided through section 5(1) of the Ontario Human Rights Code. The code specifically provides rules in relation to age discrimination in the field of employment. According to the section all individuals have the right of equal treatment in the field of employment without any form of discrimination including that of place of origin, creed, citizenship, sex, sexual orientation, gender identity, age, disability and marital status. The code defines age as the age which is more than 18 years. In addition the decision was also not applicable on people who are more than the age of 65 prior to 2006. However such provisions have been repealed to address the major issue of age discrimination in the work place (Kim & Klassen, 2015).

Arguments For and Against Mandatory Retirement

The section which prohibits discrimination in employment is widely applicable on every person. This signifies that the section is applicable on any person who is in an employment relationship. The employment can be of any from like permanent, casual or temporary. In the given situation it is clear those mandatory retirement schemes are not legal as they are a direct from of age discrimination. Thus it can be state that where the employees are forced to retire by the employer as they have reached a certain age it constitutes an unfavorable treatment to them which as a result constitutes age discrimination. Along with the legal context of age discrimination related to mandatory requirements schemes there is a ethical consideration of ageism also associated with the process. Thus the employers should not be allowed to indulge in a process which is both unethical and illegal (Katlic & Coleman, 2014).

On the other hand it is also important to ensure that businesses are able to operate in an effective manner. A business should not be hampered through the application of law. Allowing people to work at an old age subjects the business to the risk of less productivity and also the individuals to the risk of unwanted injuries. Thus it is also the role of law to protect the individuals and the businesses from unwanted physical and financial injuries (June, 2012). Thus the issues in relation to both aspects of Mandatory retirement have to be analyzed by comparing and contrasting them so that an appropriate conclusion in relation to the thesis may be derived.

As discussed above there are two aspects of mandatory retirements. One aspect relates to age discrimination and ageism and the other aspect is in relation to the risk of injury to the individuals and financial damages to the businesses. According to Tang, Choi and Goode (2013) the concept of mandatory retirement has been abolished in Canada. This has led the employers to significant challenges along with the risk of legal liabilities while dealing with older workers. As a result of the abolition an employee who has reached the age of 65 cannot be forced by the employer to retire. However this does not signify the fact that an older employee cannot be terminated from employer but the fact that now an employer does not have the right to impose arbitrarily a policy or a contractual term which requires an employee to retire at the age of 65. An employer is still provided a right where an old employee can be terminated for a just cause or with notice period. The employers are also allowed to use the same criteria for performance management which is used in relation to other employees. In this situation the employer has the right to terminate the employment of a person where he has legitimate objective evidence that the employee would not be able to perform his duties. According to Koka and Kosempel (2014) mandatory retirement is beneficial for the society. This is because it makes rooms for new ideas and new employees are able to take the place of the old employees. When the employees do not leave their position after they have become old the situation does not create enough job vacancies and new employees and ideas find it difficult to come up. In addition it has been argued by Bloom et al., (2014) that where mandatory retirements through contracts is legalized it would make the employers recruit old and middle age employees which would operate in favor of people having old age and they would be provided an additional benefit in relation to employment opportunity.  As stated by Higo and Klassen (2013) mandatory retirement is necessary to ensure the proper functioning of business and it is a proven theory that older employees are less productive. However this argument does not take into consideration the fact that age employees bring in invaluable experience to the organization which is also a major factor for the successful operations of businesses. The health of employees who have achieved an old age is also subjected to significant risk where they are allowed to work in conditions which are no longer appropriate for them because of their age.

Conclusion

In the light of all the arguments which are made in favor of mandatory retirement it can be stated that the policy must be legalized as there are various benefits associated with it.  However there are several arguments which are provided in relation to the question that why mandatory retirement from a work place has to be abolished. These arguments were the basis on which the practice had been abolished and made illegal in Canada. One of the primary arguments is one which has been provided by Vickers and Manfredi (2013) that there is no medical evidence which can provide that a person who has reached the age of 65 become incapable or infirm. According to Klassen (2013) the population of Canada is aging and people are now living longer on an average due to medical advancements. In this situation economic burden in the state is increasing due to pensions provided to those who are not working. Thus where the age at which a person should stop working is set at 65 then the burden will increase more and the ageing population would find it difficult to live a desired kind of lifestyle. As argued by Jacobs et al. (2014) it is not matured to make an assumption that the quality and standards of the profession can be enhanced by appointing young employees in significant positions. Where it is considered that it takes a considerable time to reach such a level it would be unnecessary and unfair to prevent the employees from working at the level. The employees who are old are experts and highly proficient in relation to their Jobs. They are not only respected but also bring a valuable advantage through their experience to the Job.

I have gone through the arguments which have been provided both in favor of and against the process of mandatory retirements. After analyzing the arguments provided by both sides I developed an opinion that the arguments which have been provided in support of mandatory retirement scheme is outweighed by the arguments which are provided against the scheme. Thus I have come to an opinion that Mandatory Retirement in Canada is not good for the society and the employers should not be able to force older employees to retire.  This is because there have been several provisions provided to the employer where they can still address the business requirements without forcing the old age employees to retire. They can still terminate the employment of such people when they are no longer fit to carry out the job in their role by producing substantive evidence. Business efficiency is the main argument which is provided by the supporters of the scheme however, the argument is rebutted by the provisions of terminating the employees when they are not capable by producing valid evidence. In addition the argument that the youth should be provided with more opportunities to get in new ideas is also invalidated by the argument that old employees are much more proficient and reliable for the job roles. Thus in my view employers should not be allowed to terminate employees based on their age.

Conclusion

Mandatory Retirement in Canada is not ethical and the Employers should not be able to Force Older Employees to Retire. The paper has discussed all arguments which are provided strongly in favor of and against the process of mandatory requirements. Upon weighing both the aspects of the issue it has been identified by the paper that the arguments which have been provided in support of mandatory retirement scheme is outweighed by the arguments which are provided against the scheme. Discrimination of any form is a social evil for the society and it cannot be promoted for the purpose of ensuring the benefits of business community. Allowing the employer to dismiss an employee based on age is also not consistent to ethical theories such as deontology and utilitarianism. Thus the Canadian government is correct in its approach to abolish the practice for the betterment of the society.

References

Bloom, D. E., Boersch-Supan, A., McGee, P., & Seike, A. (2014). Population aging: facts, challenges, and responses. Benefits and compensation International, 41(1), 22.

Boisclair, D., Lusardi, A., & Michaud, P. C. (2017). Financial literacy and retirement planning in Canada. Journal of Pension Economics & Finance, 16(3), 277-296.

Botwinick, J. (2013). Aging and behavior: A comprehensive integration of research findings. Springer.

Higo, M., & Klassen, T. R. (2013). 10 The future of retirement. Korea's Retirement Predicament: The Ageing Tiger, 28, 146.

Jacobs, J. C., Laporte, A., Van Houtven, C. H., & Coyte, P. C. (2014). Caregiving intensity and retirement status in Canada. Social science & medicine, 102, 74-82.

June, A. W. (2012). Aging professors create a faculty bottleneck. Chronicle of Higher Education.

Katlic, M. R., & Coleman, J. (2014). The aging surgeon. Annals of surgery, 260(2), 199-201.

Kim, J., & Klassen, T. R. (2015). 5 Mandatory retirement in Korea. Retirement in Japan and South Korea: The past, the present and the future of mandatory retirement, 92.

Klassen, T. R. (2013). Retirement in Canada. Oxford University Press.

Koka, K., & Kosempel, S. (2014). A life-cycle analysis of ending mandatory retirement. Economic Modelling, 38, 57-66.

Mulders, J. O., van Dalen, H. P., Henkens, K., & Schippers, J. (2014). How likely are employers to rehire older workers after mandatory retirement? A vignette study among managers. De Economist, 162(4), 415-431.

Schlachter, M. (2011). Mandatory retirement and age discrimination under EU law Int'l J. Comp. Lab. L. & Indus. Rel., 27, 287.

Szinovacz, M. E. (2013). A multilevel perspective for retirement research. The Oxford handbook of retirement, 152-173.

Tang, F., Choi, E., & Goode, R. (2013). Older Americans employment and retirement. Ageing International, 38(1), 82-94.

Vickers, L., & Manfredi, S. (2013). Age equality and retirement: squaring the circle. Industrial law journal, 42(1), 61-74.

Weinberg, S. L., & Scott, M. A. (2013). The impact of uncapping of mandatory retirement on postsecondary institutions. Educational Researcher, 42(6), 338-348.