Fighting discrimination or convention?

Meet Shoshanna Gavish, the woman leading the charge to end mandatory retirement.

April 9, 2015 03:31
Shoshanna Gavish

Shoshanna Gavish. (photo credit: Courtesy)

Moshe and Shoshanna Gavish’s leap onto the front pages started without pomp or circumstance.

Shoshanna has been an accomplished lawyer for decades while Moshe has been a senior lecturer at the Technion-Israel Institute of Technology.

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About two-and-a-half years ago, with Moshe nearing the age when one can retire and receive a full pension, Shoshanna uncovered, to her surprise, that a 2004 change to the law not only encouraged retirement at age 67, but made it mandatory.

Before that moment, the Gavishs, like many at earlier stages of their lives, might have looked at retirement with a pension at age 65 as a sought after reprieve from years of being obligated to work to support themselves and sustain their lifestyle.

But, again like many others, once nearing retirement age, with advances in medicine and technology helping people live longer and healthier lives, suddenly retirement seemed undesirable and forced retirement seemed stamping on Moshe’s fundamental right to work, and blatant age discrimination.

In 2011, Shoshanna Gavish rallied some of the leading academic minds on the issue to her cause and filed a robust petition to the High Court of Justice demanding it strike down mandatory retirement.

Her petition has seen multiple hearings before the High Court and multiple filings explaining her and the state’s position on the issue, including the state’s most recent filing in February and her most recent filing in late March.

And why shouldn’t people be able to work as long as they can function at the same or a similar level as they have? Former president Shimon Peres has shown that people can work into their 90s even as head of state; would it have made sense to force him or many other heads of state out at 67, possibly decades earlier than needed? Why isn’t such a mandatory retirement policy so arbitrary and lacking nuance that it is age discrimination that is as bad as gender or race discrimination plain and simple? The state has explained in detail that it believes the issue is far more complex, and that the 2004 change actually elevated the age of retirement from age 65 to 67 in recognition of the change in how much longer people are living and staying healthy in this day and age.

From the state’s viewpoint, it is obvious Peres is an exception and that most people do not live to 90, let alone remain effective workers.

Rather, the state said that the country’s protection for workers from age and other discrimination are so strong that without mandatory retirement, employers could be forced to continue to employ workers who were no longer effective, out of fear of being unjustifiably sued, which would also take away jobs from younger workers seeking to start off.

Age discrimination in this narrative becomes an abused sword for non-effective elderly people to stay on beyond their prime, lost business, causing problems, and jamming up a natural path in and out of the job market at certain ages.

Further, the state said that by making mandatory retirement the same, age 67, for all people, it is treating all people equally once they reach a certain age, which differentiates it from gender or racial discrimination.

The state notes that there are Western-minded countries in the European Union that debated the issue of whether to abandon mandatory retirement and came down on the side of keeping it, though there may be a trend to increase the age cutoff, which Israel is respecting.

Not so, said Gavish.

She rejects the idea that at the heart of mandatory retirement is anything but age discrimination and decades-old, outdated notions of how long people stay healthy and live.

To Gavish, all of the other answers are excuses dressing up a blatantly unconstitutional infringement on the individual’s right to work.

The lawyer states that studies have shown that there is no connection between age and functionality and that individual persons’ physical and mental health are the only meaningful indicators on the issue.

In contrast to claims by the state that many businesses and the economy as a whole would be harmed absent mandatory retirement, Gavish presented data from an economic study showing that if mandatory retirement was dropped, the economy could reap an additional 12.5 percent in growth from currently wasted effectiveness of some older workers who are still in their prime when forced out.

She adds that any harm to younger people seeking work has been proven to be a passing phenomenon wherever mandatory retirement has been eliminated.

Gavish responds to data about some European Union countries sticking with mandatory retirement by presenting the US (since 1986), Canada and Australia as counterexamples that have gotten rid of the practice.

Given the choice between two opposing trends globally, Gavish said there is a moral and constitutional obligation to choose the trend that “less harms fundamental rights” – the trend of eliminating mandatory retirement.

The biggest battle though on the issue may be: What is the alternative? There certainly are and will be elderly persons who seek to stay on past their prime and who may try to use their age as a sword or threat against getting fired.

Gavish said her first focus is on “eliminating the current law,” but that she “sees no reason why employers could not use objective standardized tests to check performance,” either periodically, every three, five, or 10 years, or employers offering a test to elderly employees whose performance they think is dropping, as a way to provide their bona fides, with the alternative being retirement.

The key difference again is choice and “testing functionality” versus a set and “arbitrary” unified standard, as Gavish calls it.

Though the state said that such tests would be humiliating and disruptive to a large segment of the workforce, Gavish said tests are “already an accepted part of many entry level jobs and promotions,” and that such testing could not be “as humiliating as being forced out when you definitely feel fully capable of working.”

Gavish said she has not researched the cost of such testing to the market, but believes the issue could be solved if society abandoned its “outdated notions about people needing to retire in their mid-60s,” which she called the core issue.

It is far from clear how the expanded seven-justice panel of the High Court will rule on this momentous issue.

But those closing-in on retirement age can feel confident that with Gavish fighting for them, no stone will be left unturned in the battle for equality.

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