Saturday, May 19, 2007


Superannuated. That is the word that came to my mind when Denny Crane spoke to his partner Shirley Schmidt in this week’s Boston Legal. Shirley is chastising Denny for firing a shotgun in the office and taking his pants off in a judge’s office last week. Denny tells Shirley that they are getting old. They don’t need to work. They have money. But they need to feel relevant. Crane says that everyone used to want him on their case, now no one does. And although he plays a buffoon, he is portrayed as a lawyer with some 6000 wins under his belt and no losses. Clearly, he could still be relevant. But he is old. Crane repeats that to Shirley several times to make the point.

It is uncertain what age the Denny Crane character is supposed to be. I would have placed him, together with his other name partners in their 60's. I was surprised to learn that William Shatner is 76 years old. There’s an interesting contrast in the fact that Shatner is as relevant today as he was as a young Captain Kirk. In his real life he is not superannuated – though certainly, he has endured some post Star Trek ignominy, seemingly being the national Schadenfreude target for a period of time. But he has transcended that.

Literally, the word "superannuated" means beyond the years or over the years. Too old. Some definitions state "no longer useful". Denny’s speech is reminiscent in its feel to the whole character of Willy Loman. Of course, with Loman the usefulness, or relevance of his entire life is in question – but the spot light seems to get turned on to it as he ages. There is no longer any possibility that he will succeed. With Crane it seems to be that age is what has him put to pasture.

With mandatory retirement now illegal in Ontario – we will likely begin to see more and more people working past 65. But like all forms of discrimination – making it illegal doesn’t change discriminatory attitudes.

There is a curious and somewhat disguised justification of this discriminatory attitude in the university professor retirement cases, McKinney and Dickason. Both those cases held that the mandatory retirement provisions were a reasonable restriction on the right to be free from discrimination. The basis of the decisions revolves around the tenure system. It is argued that knowing that mandatory retirement will bring the employment relationship at an end at a fixed date will allow the tenure system to operate because employers will not look to subvert it by means of evaluation or a hyper vigilant search for cause. In other words, it is accepted that the professors are no longer useful because they have aged, but if they can’t be gotten rid of by mandatory retirement there is always the abuse route. For in essence, that is what the SCC is saying. The court has taken the tenure shield, turned it into a sword and then stabbed the professors with it. Hoisted with their own petard and all that.

Perhaps the best course for Denny Crane is to take on an age discrimination case and make it the most brilliant of his career.

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