While there is no per se legal prohibition against an employer asking an employee about retirement, in some instances when this line of questioning is made by a supervisor, it could be considered evidence of age bias or part of a pattern of illegal pressuring an employee to resign. This type of questioning, depending on the circumstances, could be construed as the supervisor is suggesting, expecting or encouraging retirement. It should not be assumed that workers in their 50's, 60s, 70s or any age are ready or planning to leave the workforce. If you think your employer is pressuring you to resign because or your age, you should contact this office today for a free consultation. I have represented employees who were specifically asked that exact question prior to termination and was successful in obtaining six figure settlements for them.
Not Always a Stray Remark
An employer asking when a worker will “retire” is not always an innocent “stray” remark
In Castelluccio v. IBM, 2014 U.S. Dist. LEXIS 100058, a Federal Court found that evidence of statements made by the direct supervisor to the Plaintiff, Castelluccio, concerning his age and eligibility for retirement could be viewed by a jury as direct evidence of age discrimination.
The defendant, employer IBM, contended that statements made by the supervisor concerning the employee’s age and eligibility for retirement could not be viewed as direct evidence of age discrimination because they were innocuous statements and so far removed from the termination decision as to constitute inadmissible stray remarks. The Court disagreed.
Age-based Remarks Have to Be Considered in Totality of Circumstances
Prior to trial, IBM filed a motion seeking to exclude age-based remarks made by the supervisor. The court denied that motion on the basis that whether the remarks were probative of age discrimination was a question of fact that was best left to the jury. As to juror instructions, the defendant IBM asked the court to include the following instruction to the jury: "Inquiries about retirement are not evidence of age discrimination. You may not rely upon them as proof of age discrimination. It is not improper for an employer or supervisor to inquire as to its employees plans for the future." Again, the court declined to include Defendant IBM's proposed jury instruction, however, the court nevertheless instructed the jury that an inquiry about retirement is not necessarily evidence of age discrimination.
The Court noted that the retirement remarks were made by a decisionmaker, a direct supervisor, one with authority. The Court stated that stray remarks of a decisionmaker, without other evidence, cannot prove a claim. But then the Court provided further clarification and went on to state that "The court should not categorize a remark as 'stray' or 'not stray' and then disregard that remark if it falls under the 'stray' category." ......."Instead, the court must consider all the evidence in its proper context. . .. the more a remark evinces a discriminatory state of mind, and the closer the remark's relation to the allegedly discriminatory behavior, the more probative the remark will be."
A Question for the Jury
Whether certain comments were actually made by the supervisor and the extent to which they reflected an ageist animus against the worker was therefore a question of fact properly submitted to the jury. The court instructed the jury that not all inquiries about retirement are necessarily evidence of age discrimination. Having been cautioned by the court that not all comments about age and retirement are evidence of age discrimination, the jury was left to decide for itself what weight, if any, should be given to the remarks in question to raise an inference of age bias. The Court concluded that the remarks in question were so remote in time as to have been rendered inadmissible on that basis alone if there was no other evidence.
When Comments Suggesting Age Bias Are Made by a Supervisor With Decision-making Authority
The Court did not agree with IBM's position that the statements concerning age and retirement were innocuous; they found them to be significant. The remarks at issue were not made by an individual at IBM without the authority to make personnel decisions; rather, they were made by the Plaintiff’s direct supervisor who had the authority to terminate him. The Court found that comments were particularly significant when considered in the context of all circumstances of the personnel decisions made by the supervisor.
What You Can Do
If you believe that your employer used age as the determining factor as to who to keep and who to let go, it is important that you consult with an attorney who is experienced in age discrimination. I am an aggressive and compassionate employment law attorney who is experienced in representing older workers.
If you are being subjected to such unlawful workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.
If you quit your job, you may lose right to prevail in a lawsuit.
In many instances of discrimination, if you quit your job, you may lose right to prevail in a lawsuit unless you first take certain legally required measures to preserve your job while you are still employed. If you are thinking of handing in a resignation letter, or think you will be fired (or have already been terminated), you should contact this office immediately for a free consultation to discuss your options.
I accept discrimination and whistleblower cases from all over New Jersey and have locations in Southern, Central and Northern NJ to meet with clients.
Hope A. Lang, Attorney at Law represents workers throughout the entire state, including Hackensack, Jersey City, Newark, Irvington, Orange, East Orange, Trenton, Paterson, Montclair, Elizabeth, North Brunswick, Cherry Hill, Vineland, Union, Plainfield, Hamilton Township, Lakewood, Edison, Parsippany-Troy Hills, Franklin, Lakewood, and every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.