globeandmail.com

Not going quietly to the golf course

Wednesday, April 27, 2011

The end of mandatory retirement could mean a wave of age-discrimination cases - and even law firms are not immune

JEFF GRAY

jgray@globeandmail.com

Mitch McCormick, 66, is not yet interested in a retirement party with cake, speeches and polite applause. Like many lawyers, he just wants to keep working, in his case as a partner at Fasken Martineau DuMoulin LLP in Vancouver, advising companies on financing and transactions as he has done for 40 years.

The problem is, Fasken Martineau, like many other major law firms across Canada, requires most of its partners to wind down their practices as they approach a certain age. At Fasken Martineau, quitting time is 65. (Some lawyers are allowed to stay on, but not as equity partners with a share in the business.)

Outside the world of law firms over the last few years, provincial governments have done away with mandatory retirement for most workers. So Mr. McCormick has taken the awkward decision to challenge his own law firm before the B.C. Human Rights Tribunal, accusing Fasken Martineau of age discrimination.

"Every lawyer I know has read this case," said Murray Tevlin, the Vancouver employment lawyer who represents Mr. McCormick. "I'm 60 myself. And a lot of my friends are 65, and everybody's interested in it."

It's not only lawyers of a certain age who are following the case with interest. Other professionals that work in partnerships, such as chartered accountants and engineers, are watching it as well, Mr. Tevlin said.

The rest of Corporate Canada could also face a wave of age-discrimination cases, some employment lawyers say. With more older workers in all sorts of fields staying past the traditional retirement age, many predict employers may try to push them out the door using other means.

Mr. McCormick, who remains at work despite turning 65 last March, declined to comment on his case, referred the request to Mr. Tevlin. "It would be a lot easier to go out without any fuss for a guy like him. He's been a lawyer for 40 years. He's at the top of his game," Mr. Tevlin said of his client. "He just says this is wrong."

So far, Mr. McCormick has won a key preliminary victory. In December, B.C. Human Rights Tribunal member Murray Geiger-Adams ruled that Mr. McCormick, despite being a partner in the firm, could be considered an employee, making the firm subject to the province's human-rights legislation.

The law firm, which argues that, as a partnership made up of owners, it is beyond the reach of human rights legislation, has appealed for a judicial review of the ruling in the B.C. Supreme Court, where it is scheduled to be heard next month.

In a statement, Fasken Martineau's Vancouver managing partner, William Westeringh, said he was disappointed with the decision. He pointed out that partners at Fasken Martineau all voluntarily sign agreements that outline the firm's retirement policy.

If the ruling stands, other large law firms could be newly vulnerable to similar human-rights complaints, Mr. Tevlin said.

Meanwhile, some employment lawyers say older workers in all kinds of workplaces who stay past the traditional retirement age may soon be facing similar legal fights. And the potential for allegations of age discrimination means employers are facing a delicate balancing act when it comes to letting older workers go.

Rob Sider, an employment lawyer with Lawson Lundell LLP in Vancouver, says employers used to be able to avoid addressing declines in productivity among some workers in their 60s by simply waiting until they retired.

Now, managers may try to terminate older employees with declining productivity- opening them up to age-discrimination allegations, he said. To protect themselves, employers need to develop standards all employees are required to meet, he said.

"You are going to have to manage people out," Mr. Sider said. "You are in a situation where you have to be sort of nasty about it."

Still, Mr. Sider and several other employment lawyers say they haven't yet seen an avalanche of age-discrimination cases before provincial rights tribunals. In many cases, aging employees have no appetite for a fight; they settle such disputes before they reach a tribunal, lawyers say.

The federal Canadian Human Rights Commission's 2010 annual report says age discrimination is a growing concern, citing the cases of two Air Canada pilots who refused to retire at the required age of 60. The report says age discrimination disputes made up 27 per cent of complaints the commission accepted last year.

(The federal Human Rights Act, unlike provincial human rights laws, actually still allows for a retirement age for federally regulated industries such as banks and airlines, although the tribunal itself has ruled that this provision is unconstitutional.) Denise Réaume, a law professor at the University of Toronto, said a wave of age-discrimination cases could have far-reaching implications.

This is because under human-rights legislation, employers may in fact have to "accommodate" age differences in the workplace, just as they are now obligated to accommodate the disabled. For example, older workers in physical jobs they can no longer do may be entitled to desk jobs.

This could create a "significant burden" for employers, she warned: "This is actually, frankly, something governments should have anticipated [when the laws were changed]. ... They ought to have thought about what the systemic fix is for the problem."