Bona Fide Occupational Requirements and Older Workers
The elimination of mandatory retirement at age 65 has already begun to have one predictable effect. Employers are struggling to figure out how to ease older employees, who may no longer be able to safely perform their job, out of the workforce.
This is the result of changes made to B.C.’s Human Rights Code, effective in January of 2008. The key change was that human rights protections were extended, in the employment context, to persons who are 65 years of age or older.
As a result, retirement policies triggered solely by advancing age are now illegal. Employers can still discriminate on the basis of age against persons younger than 19 but, when it comes to older employees, employers are no longer able to rely on the simple fact of aging.
An exception to that rule occurs when the employer can demonstrate it is a bona fide occupational requirement for the employee to be a certain age. Demonstrating the existence of a bona fide occupational requirement, however, is no easy task.