(photo credit: INIMAGE)
In a resounding 7-0 decision, the High Court of Justice on Thursday put to rest possibly the most significant age discrimination issue in decades, ruling against a petition and deciding that mandatory retirement at age 67 does not discriminate against the elderly.
Had the petition succeeded, employers across the country would suddenly have to decide employees’ status on a case-bycase functionality basis. Since it has failed, the hopes of those elderly around the age of 67 to beat mandatory retirement are essentially over, unless there is an unexpected major change of approach by the Knesset.
The decision essentially accepted the state’s February 2015 recommendation to the court that the issue was complex and better handled by the Knesset, which needed more time to address unresolved disputes not only about having mandatory retirement, but about also raising the age of retirement.
The court found that even as mandatory retirement did harm the rights of the elderly, that there were competing priorities, such as opening jobs for young people and keeping down the age when people can receive their pensions, and that the harm was proportionate in that light.
The high-profile academics who supported the 2012 petition to the High Court include Profs. Asa Kasher, Ruth Ben-Israel and Mordecai Segev. The petition was filed by attorney Shoshana Gavish on behalf of her husband, Technion-Israel Institute of Technology Prof.
Despite the defeat, Shoshanna Gavish tried to highlight positive aspects of the decision, including Supreme Court President Miriam Naor’s complimenting the petitioners for generating debate on the important issue and Justice Neal Hendel’s call for a new government commission to revisit the issue since the last commission to do so is now dated.
Gavish noted that the High Court “called on the legislative branch to rethink the issue and even establish a new commission to review it. Forced retirement due to age is a severe harm to the constitutional rights of the dignity of man and equality.”
In November 2014, the expanded seven-justice panel of the High Court heard oral arguments about the law’s constitutionality by the state and by leading professors, who oppose the present employment law.
At the November hearing, the justices’ questions to Chani Ofek, the state attorney’s representative, included hypothetical suggestions to tweak the current law, in which retirement at 67 was mandatory, unless both the employer and the employee wanted the employment relationship to continue. The employee must retire if the employer does not agree to continued employment.
One justice suggested that the mandatory retirement age could be raised higher than 67, having already been raised from 65, because of longer lifespans.
Another justice suggested that if there was no law mandating forced retirement at a certain age, such as 67, employers and employees could decide the issue on a case-by-case basis, but that making retirement mandatory went too far.
Ofek defended the present law, and said that without mandatory retirement the younger generation would not be able to find jobs.
The absence of mandatory retirement would most likely defend wealthier peoples’ job security at poorer peoples’ expense, she added.
Shoshana Gavish pointed out that the arguments the state made about negative impacts for younger workers in countries where mandatory retirement was eliminated was usually a passing, three-year phenomenon.
A spokesman for Gavish said that, while the 2012 Weinberg decision had helped some elderly workers avoid mandatory retirement under the present law, the petition was far more ambitious in seeking to throw out the law in its entirety.
In February 2014, the High Court of Justice issued an interim injunction requiring the state to explain why the retirement age of 67 should not be voluntary, as opposed to mandatory.
That order, as well as the order to analyze the Weinberg decision’s implications, gave guarded optimism to the petitioners that the court was seriously considering overturning the law up until the petition was rejected, after a long wait, on Thursday.
The petition argued that the law requiring mandatory retirement from certain positions at 67 was passed at a time when people died and became physically diminished at younger ages, and notes that many democratic countries, including the US, Canada and Australia, have already changed any such discriminatory laws.
In response, the state had said that there are other democratic countries that still have a mandatory retirement age, including in the European Union, adding that the cut-off age of 67 was selected after consultation with expert sociologists.