In July, the Canadian Human Rights Tribunal made its third decision in the case of two Air Canada pilots who challenged the airline’s mandatory retirement policy. The tribunal decided in favour of Air Canada. Then, in August, the tribunal decided in a similar case involving 70 other Air Canada pilots. The tribunal again decided in favour of the airline, but for different reasons. For those hoping the July decision would settle the matter once and for all, the August decision is sure to confuse matters.
I wrote about the history of the case last August, and Yosie followed up with a look at the second tribunal decision in November.
The Canadian Human Rights Tribunal (Vilven v. Air Canada, 2011 CHRT 10) confirmed that, while Air Canada’s policy of mandatory retirement for pilots at age 60 was discriminatory, it was also justifiable. The policy constituted a bona fide occupational requirement (BFOR). Convincing evidence established that, in light of the 2006 International Civil Aviation Organization (ICAO) standards and in particular the “over/under rule”, Air Canada was not able to accommodate the pilots without suffering undue hardship considering health, safety, and cost.
Essentially, based on this most recent Vilven decision, Air Canada doesn’t have to reinstate the pilots or pay them for lost wages and benefits.
But is this the end of the story? I don’t think so; not if you take a look at the case decided by the same tribunal one month later. Thwaites et al. v. ACPA and Air Canada, 2011 CHRT 11 (PDF) involved 70 other pilots launching a similar complaint; this time, the tribunal concluded that Air Canada did not prove that mandatory retirement was a BFOR. However, the tribunal found that 60 is the normal age of retirement for airline pilots in Canada, and thus, the mandatory retirement policy did not contravene subsection 15(1)(c) of the Canadian Human Rights Act:
It is not a discriminatory practice if an individual’s employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual.
Thus, the pilots were still denied any of the things they wanted, but for the first reason cited back in 2009.
What does it all mean?
At this point, the tribunal has upheld Air Canada’s policy requiring pilots to retire at 60, but the reasoning may be a little shaky.
What employers can take from this situation is that if they want to have a limiting policy such as mandatory retirement, they are going to have to show that the discrimination on its face is justified. An effective way to accomplish this goal is to prove (with evidence) that they will experience undue hardship in terms of health, safety and cost, if they were to accommodate the employees.
What do you think about this case? It has gone on for a great deal of time, and the seemingly contradictory decisions between the tribunal and the Federal Court suggest that this should have been resolved a long time ago. Do you think that the various decision makers took too long? Do you agree with their reasoning?
Christina Catenacci
First Reference Human Resources and Compliance Editor
Christina Catenacci, BA, LLB, LLM, PhD
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