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May 22, 2013
Encouraging retirement could be discrimination

The Human Rights Tribunal of Ontario has awarded damages to a woman who was encouraged to retire by her employer.

The case involves a 60-year-old woman whose age and years of service with her employer qualified her to take early retirement.  While she had not made up her mind about retirement, her supervisor began to make comments that seemed to encourage her to retire.  He also attempted to have her meet his retired friends to “provide her with information” about retirement.  In addition, he also appeared to discourage the woman from applying for other positions within her department.

Ultimately, the woman felt that she was being forced to retire and the employer’s subsequent actions were based on the assumption that she would retire.

She then took her case to the Tribunal, alleging that she was a victim of age discrimination.

In reviewing her case, the Tribunal found that while it is not necessarily discriminatory to treat an employee differently once he or she announces his/her retirement date, treating a person differently because they were at or close to the retirement age amounted to age discrimination.

“Treating an employee as if the employee is going to retire imminently when the employee is not going to retiree imminently can infringe on a person’s protected rights because the basis for the treatment is the employee’s age,” the Tribunal noted.  “Similarly, encouraging an older employee to take advantage of retirement options might result in discrimination because the message could be that the older employee is no longer valued as an employee.”

However, the Tribunal added, simply providing general information about an employee’s retirement options is not discriminatory, particularly if the information is provided at the request of the employee.

For plan sponsors, the Ontario Human Rights Tribunal ruling underlines the importance of administering retirement programs prudently, particularly during periods of downsizing or corporate re-organization.  While offering to support a decision to retire or responding to a request for further information is acceptable, encouraging an employee to retire, either directly or subtly, could result in litigation.

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