Arguments that the UPEI decision is harmful to society ignore what the case really meant for age discrimination

image: babyboomercaretaker.com

After UPEI was forced to rehire and compensate the professors it retired at 65, there was considerable buzz that people over 65 should not be allowed to teach because they were a) too old, b) not smart anymore, and c) in the way of young people who need jobs.

All of these are the usual reasons why people are discriminated on the basis of age.

Since that ruling, some PEI school bus drivers have filed complaints there are discriminated against when they have to retire. The chatter against the PEI Human Rights Act is getting louder.

Rob Paterson, ever the erudite blogger, takes aim at the PEI Human Rights Act in his post  The Fatal Flaw in the PEI Human Rights Act.

Rob sees the  HR Act as wrongheaded in emphasizing the individual over the collective society.  “The focus here is on the individual. The act ignores groups. The act ignores consequences. So I can be a Prof at UPEI or a Bus Driver for the School Board and have my right not to be denied work because of my age accepted. But what about the “Rights” of people in a younger age bracket?”

I think he and many people are over-simplifying the Human Rights Act. First, the Act does not exist in isolation from other laws and legal precedents.

For example, the Canadian Charter of Rights and Freedoms, which can be seen as the father of this act, clearly states the relativity of human rights. Human Rights don’t exist as absolutes but only within the boundaries of society

“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

If someone can demonstrate that a limitation to the age discrimination is reasonable then it will be allowed. For instance, if the facts show bus drivers after a certain age are poor drivers or a safety risk then it may be that retirement is legal. Without pre-judging how the HR Commission will rule, it would seem more logical that each driver would have unique capacity for driving that is not related to their 65th birthday.

The Act in itself is a very thin law when compared with Ontario and Nova Scotia, both of which proscribe many more instances of HR abuse.

Who shall we exempt from protection of their human rights? Women, aboriginals, people with non traditional sexual preferences, those living with disability, people who are of another race?

It used to be said we can’t have women being lawyers, doctors, police officers. They are…well…women are just…they just can’t do the work. Health care, legal services, public safety will suffer. They are taking jobs from men who need to support their families. Obviously those responses are not legitimate. Substitute a any minority for women in the example and fill in the blanks.

The reality is that enumerated minorities have suffered thousands of years of abuse at the hands of the majority. The law is meant to redress those inequalities. Opponents of human rights like to point out individual rights are more important. We see this in the US with the rise of anti-civil rights politicians like Rand Paul. They use specious examples to knock down reasonable laws that protect people.

In the case of age discrimination, there is plenty of legal precedent that says people can be retired for reasons of public safety. The school bus cases will test those precedents against PEI’s regulations.

The rights of minorities are so poorly protected in our Province I find it hard to believe people think individual rights have supremacy.

As a disability rights advocate all I see is no rights for the disabled. It’s still a game of charity and a pat on the head for those living with disabilities. When a giant like UPEI takes away accessible parking, what recourse do the disabled have? They can complain to the HR commission. That is a 5 -8 year process that exhausts able bodied people. Where do the disabled fit into this process?

Canada and PEI need more rights legislation plus enforcement not less. If you were a person with a disability, you would soon discover you are about on the level of a 19th century black person without the threat of personal violence.

My vantage point of being an business leader and reduced to a person with a disability certainly gave me an awakening on how miserably the disabled are treated.

The Fatal Flaw in the PEI Human Rights Act.

So what is the problem? Do you see it?

The focus here is on the individual. The act ignores groups. The act ignores consequences.

So I can be a Prof at UPEI or a Bus Driver for the School Board and have my right not to be denied work because of my age accepted.

But what about the “Rights” of people in a younger age bracket? By changing the “rules” of employment, the Commissioners have given a few individuals their “Right” but at the cost of damaging the rights of many classes of people – at UPEI and now maybe across all of PEI.

This is not the fault of the Commissioners but of those who drafted the Act. The structure of the Act ignores any idea of consequences and how one singular decision may affect others.

The Act violates the principles of all systems. Systems are interactions. The Act ignores the reality that every individual event reverberates and affects all else.

What they have inadvertently unleashed by favouring a few, is damage to many.

By setting the individual precedent of the 3 staffers from UPEI, Pandora’s Box is opened. Many other people and groups could suffer as a result.

So what to do?

Re-examine the Act! Insert the idea of consequences and of dealing with competing interests. Make the Act realistic.