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Is Mandatory Retirement Unfair Age Discrimination?

Published online by Cambridge University Press:  01 January 2020

Gary A. Wedeking
Gary A. Wedeking*
Affiliation:
University of British Columbia, Vancouver, BC, CanadaV6T 1W5
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Extract

In this paper I will deal with two questions. One is the relatively specific issue of whether mandatory retirement is unjust discrimination against the aged. The position taken is that it is not. But in the development of this argument a principle is advanced which appears to have the consequence that nothing, or at least very few of the practices that we are intuitively inclined to regard as unfair discrimination, are discriminatory with respect to age.

Type
Research Article
Information
Canadian Journal of Philosophy , Volume 20 , Issue 3 , September 1990 , pp. 321 - 334
Copyright
Copyright © The Authors 1990

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References

1 The qualification is to allow for the possibility that in certain exceptional cases all things considered the upshot of a just principle might turn out to be unjust. This would be due to a competing justice claim from some other source or sources which outweighs the claim stemming from the principle. So a principle that is ceteris paribus just in my sense is one that creates a justice claim, but one which may be defeated by conflicting claims. Thus its violation in such a case might reasonably be regarded as effecting no injustice.

2 I would not maintain, of course, that a relatively minor injustice could never be outweighed morally by some great social utility. But the utility would have to be great relative to the injustice indeed. The normal presumption is that the requirements of justice should be met before the claims of utility are heard.

3 Janet Radcliffe Ricards argues against the connection between discrimination and harm by reference to cases of sexual discrimination which (a) benefit women rather than men, (b) work against women without apparently benefiting men or (c) are neutral with respect to harm and benefit ('Discrimination, Aristotelian Society, suppl. vol. 59 [1985J 70). But her case (b) is consistent with the harm thesis and those she cites for (a) appear to be straightforward cases of discrimination against males, thus serving in fact to substantiate the connection between discrimination and harm. As for neutral treatment (different but equal distribution of harm and benefit), my intuition is that bone fide cases (perhaps a Mars Bar for Johnny, an O'Henry for Mary) would be non-discriminatory because not unfair. But intuitions here may be clouded by the obvious ideological use of the separate but equal formula to try to pass off discrimination as non-discriminatory.

4 See Nathan Brett, Equality Rights in Retirement, in Poff and Waluchow, Business Ethics in Canada (Scarborough, ON: Prentice Hall 1987), 230.

5 Perhaps the best treatment of the relevance of a classification to a (legitimate) legal purpose is still that of Joseph Tussman and Jacobus TenBroek, The Equal Protection of the Laws (California Law Review 37 [1949]), esp. section 6, 344ff. It is not part of my argument here that race or sex could never be relevant to such a purpose.

6 See Gerald Dworkin, Paternalism. in Rolf Sartorius, ed., Paternalism (Minneapolis: University of Minnesota Press 1983) 28ff. (Reprinted from Till Monist 56 [1972).)

7 See Samuel V. LaSelva, Mandatory Retirement: Inter-generational Justice and the Canadian Charter of Rights and Freedoms, Canadian Journal of Political Science 20 (1987) 149-62, for an argument based on this idea.

8 See Tussman and TenBroek, 358, n. 35.

9 An especially strong version of this assumption has been stated by Robert J. Drummond ('Comment on Mandatory Retirement: Integenerational Justice and the Canadian Charter of Rights and Freedoms by Samuel La Selva, Canadian Journal of Political Science 21 [19881 588). Drummond asserts that the problem of intergenerational justice should be assessed by the treatment of individuals at a single time point. His criterion is that access to scarce jobs should be no more varied between generations than within generations at any one time. This principle appears to have the counterintuitive result that discrimination within a generation (say because it includes a despised racial minority) would show an otherwise unjust pattern of discrimination between generations to be fair. But not only is the criterion flawed in this obvious way, Drummond's underlying assumption is undefended and in my view indefensible. Why should the justice of a policy be assessed by the way it treats individuals at a single time, rather than by its over-all impact on their well-being?

10 Brian Barry, Political Arguments (London: Routledge and Kegan Paul1965) 184-6

11 We should note that our argument against the theory that mandatory retirement is unfair age discrimination did not depend on this backward looking feature of our concept of fair treatment. For in this case one's past employment results in a straightforward way in present material well being. The argument could of course be strengthened by making it independent of this contingent circumstance, if we accept the relevance of past consumations to the question of fairness at a later time.

12 Frontiero V. Richardson, 411 U.S. 677, 686 (1973), plurality opinion. Quoted in Lesie W. Abramson, Compulsory Retirement, Missouri Law Review 44 (1977) 48.

13 I would like to thank the participants in the UBC Law Seminar and Philosophy Colloquium, and in particular to Earl Winkler, Kurt Preinsperg and Michael Philips, for helpful comments on earlier drafts of this paper.