Myth: Mandatory retirement is against the law.
Reality: Mandatory retirement may be legal if it’s necessary to protect safety.
Mandatory Retirement & the BFOR
Forcing a worker to retire at 65—or other pre-designated age—is generally considered a form of age discrimination banned by human rights law.
But such a policy can be justified as what’s called a bona fide occupational requirement (BFOR). Using the BFOR defence is far from easy. Employers must prove 3 things to show that a mandatory retirement policy is a BFOR:
- They adopted the policy for a legitimate purpose related to job performance;
- They did so in a good faith belief that the policy was necessary to fulfill that purpose; and
- The policy is “reasonably necessary” to accomplish the purpose.
Safety is generally recognized as a legitimate purpose. Prongs 2 and 3 are the hard part. A mandatory retirement policy for safety dispute would likely boil down to whether the company could demonstrate:
- That the worker’s age creates a clear risk of health and safety to the worker, his co-workers and/or members of the public; and
- That forcing the worker to retire is the least restrictive way to deal with the safety issue; and
- It’s impossible to accommodate the worker, e.g., by reassigning him to positions that older persons can carry out safely, without incurring undue hardship.
Mandatory retirement is thought of as an HR issue. But to the extent mandatory retirement policies get adopted to prevent the hazards—or perceived hazards—created by the diminished capacities of age, it’s also a matter of vital concern to the person running the company’s OHS program.