The Supreme Court is giving the government a true opportunity to do the right thing

What are the considerations at issue? As mentioned, the issue of the severe injury to a constitutional right has been determined.

By SHOSHANA GAVISH
Supreme Court of Israel (photo credit: Wikimedia Commons)
Supreme Court of Israel
(photo credit: Wikimedia Commons)
The Supreme Court has ruled that mandatory retirement due to age breaches the constitutional right to dignity and equality. This is an important achievement, though the court did not annul the law that allows employers to forcibly retire employees due to age. The court praised the state for its decision to bring the issue to the government’s consideration and for its decision to form a committee to examine the issue and the need to adjust the age of retirement in view of increased longevity.
The court’s decision is an important step in the campaign to outlaw forced retirement due to age. Previously the issue of whether a constitutional right was involved had not been resolved. Now however, the issues of the right to work and the injury to the right to work have been resolved: no longer a secondary right or a trifling injury but a constitutional right and a severe injury.
The petition was rejected – at the second stage of the judicial review – because as aforesaid forcible retirement due to age at 67 reflects, in the court’s eyes, a balance between competing legitimate interests which is within the range of reasonableness, despite judicial criticism of the sweeping and wide language of the law that does not distinguish between the different situations of employees who reach compulsory retirement age.
Though the court did not annul the law, its decision does convey the need to reexamine the balance. The existing balance reflects the recommendations of a committee from over a decade ago and the reality has since changed. In the court’s view, the reexamination of balance – in which wide-reaching social and economic issues are involved – should be done by the Knesset and the government. Justice Neal Hendel even said that should such a reexamination not be undertaken within a reasonable time, the parties reserve the right to reopen the issue.
Today two immediate initiatives have been taken: MK Erel Margalit (Labor) presented a bill that seeks to cancel mandatory retirement due to age and replace it with an occupational test. The government has formed a committee to examine the general issue of retirement in view of increased longevity. The committee member representing the General Federation of Labor is Prof. Ruth Ben-Israel, one of the petitioners and a pioneer in the campaign against ageism in the workplace. Avi Nissenkorn, the head of the GFD, has in the past declared that the campaign for older employees is high on his agenda.
What are the considerations at issue? As mentioned, the issue of the severe injury to a constitutional right has been determined.
The significance is that in order to justify such injury there must be contrary rights and interests of considerable magnitude, a necessary connection between the injury and the fulfillment of such rights and interests and the injury must not exceed what is necessary for such fulfillment.
It is also important to emphasize that considerations raised in the past to justify the injury have been removed from the constitutional debate. First, forcible retirement due to age is no longer justified by reduced performance. Age is not considered to be a predictor of performance.
Secondly, the president of the court stated that economic considerations such as the cost of performance examinations cannot be used to justify the injury to a constitutional right.
The counter-considerations considered cogent are the inter-generational consideration (the so-called employment of older employees at the “cost” of younger employees), the protection mandatory retirement age provides against ageism up to mandatory retirement age, the connection between tenure and mandatory retirement age and the degradation involved in performance tests.
The petitioners attempted to show that such considerations do not justify the injury to older employees of forced retirement.
Economically, employment is not a zero-sum game. The increase in employment leads to added prosperity and additional opportunities of employment. The budgetary constraints that may occur in certain places of employment are temporary and will pass after a transitional period and can be solved as they were solved when the retirement age was raised from 65 to 67 in 2003. The way to protect people in all stages of life against ageism is not validate ageism – as forced retirement due to age does – but rather to condemn and uproot it. The connection between tenure and forced retirement due to age is theoretical and has not been empirically proven, in addition to the fact that tenure is meant to protect performing employees who wish to continue working and whose interests should not give way to those of nonperforming employees. Finally, performance tests should not be regarded as degrading, especially optional and relevant ones.
The petitioners still believe that these considerations – even in their accumulation – do not outweigh the severe injury to older employees. Each of us is an injured party – either himself or herself or via family members or friends who are forcibly retired and do not recover from the blow of forced retirement.
As Justice Hendel said: “The injury is broad, fundamental and much deeper and should be emphasized. The injury to the right of equality – which amounts to an injury to human dignity in the circumstances – is not the only injury. Also the freedom of occupation, creation and personal expression – which reflect another prominent aspect of human dignity – are injured, and severely. There are... people for whom there is a tight connection between their self-definition and their contribution at work. And all of a sudden, at the approach of a calender date, they are forced to sever the connection completely.
Despite the fact that some of them are still capable and willing to contribute and at a high level.
“Time, which is the most precious asset of a person, seeks for another content and does not find it. Such a person may feel worthless, isolated and even degraded. He may also feel that he is outside of the main center of life and as is known – at times it is very cold outside.”
The campaign is now in the public domain. The petitioners are convinced that annulling mandatory retirement age is only a matter of time – and not a long time.
The author is an advocate and head of the Campaign against Forced Retirement due to Age.