My supervisor keeps asking me about when I will retire. Does that count as harassment?
An employer’s inquiry about when an employee will retire can be unnerving, especially if the employee is not ready.
Depending on the frequency of retirement inquires and whether they were accompanied by age-related statements, they may violate state or federal laws against age discrimination.
While the federal Age Discrimination in Employment Act (ADEA) protects employees from age discrimination so long as they are 40 years of age or older, New York’s Human Rights Law prohibits age discrimination, regardless of age. It is important to note that under certain circumstances, employers can ask employees about their retirement plans or offer early retirement incentives. “The ADEA does not make all discussion of age taboo,” the 2nd Circuit U.S. Court of Appeals said in Raskin v. Wyatt Co. (1997).
In Raskin, for example, the president of the employer expressed concern that the plaintiff, who was 55 years old and seeking promotion to a managerial position, “would not remain with [the company] long enough to learn the manager’s job.” The 2nd Circuit said the employer “had a legitimate reason to confirm [the plaintiff’s] interest in a career change notwithstanding the possibility that [he] would have the option of taking early retirement.” Similarly, in Roundtree v. School Dist. Of City of Niagara Falls (2002), the New York Supreme Court, Appellate Division, found the employer was justified in asking the nearly 65-year-old plaintiff about his retirement plans “in light of the magnitude of the workforce reductions.”
However, not all retirement comments or inquiries are legitimate. Encouraging a 63-year-old waitress to retire, calling her a “stupid old yaya” and refusing to allow her to dress like younger waitresses could create a hostile work environment, the New York Supreme Court, Appellate Division, Third Department found in Anagnostakos v. New York State Div. of Human Rights (2007). Similarly, in Kassner v. 2nd Avenue Delicatessen Inc. (2007), the 2nd Circuit found comments made by a supervisor and co-workers to a 79-year-old waitress, such as “retire early,” “drop dead,” and “take off your wig,” could support a hostile work environment claim under the ADEA.
Employees who believe they have been subjected to age discrimination should immediately consult with an experienced employment law attorney.
Greg T. Rinckey, Esq., is a founding partner at Tully Rinckey PLLC, a full-service law firm located in Colonie. For more information about the firm’s estate planning, personal injury, employment law, real estate, family and matrimonial law, or bankruptcy practices, please visit www.1888Law4Life.com. If you would like your legal question or topic answered in the next issue, please contact Greg Rinckey at 218-7100 or askthelawyer@1888 law4life.com. The inform ation in this column is not intended as legal advice.
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