When Retirement Talk Turns Into Age Discrimination

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By Eric B. Meyer

“At your age, David, you hadn’t even thought about retiring?”

What could go wrong when the boss’s son asks that question of, David, a nearly-40-year employee? Oh, right, David got laid off a week later.

Age discrimination? Well, let’s see…

We know that when an employer inquires about an employee’s retirement plans — without bringing up age — it should be able to avoid liability. But, repeated inquiries about a plaintiff’s intention to retire could suggest an age-related impetus for his eventual firing.

Take care when talking about retirement plans

What about one retirement question plus (+) one age reference plus (+) adverse employment action one week later?

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According to a federal court in Mississippi, maybe:

First, the comment specifically referenced Hawthorne’s age and was therefore age related. Second, the comment preceded Hawthorne’s termination by one week, making it sufficiently proximate in time to the termination. Third, Allen Fielder, the company’s vice-president, wrote and signed the termination notice that ended Hawthorne’s employment just one week after making the comment about Hawthorne’s age, and therefore had authority over the employment decision. Finally, a reference to retirement at Hawthorne’s age is related to his termination, given that the termination immediately followed Hawthorne’s refusal to agree to retire.

Easy lesson here: If you plan to let some retire on their own timetable, you can ask them for that timetable to plan for the transition. However, if you plan to lay off an older employee, best not to ask them about their retirement plans immediately beforehand.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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