Older employees who believe a supervisor is trying to get rid of them because they’re too old can voluntarily retire—and then turn around and sue their former employer.
By citing the so-called constructive discharge theory, they can show they had no choice but to quit. When constructive discharge lawsuits go to trial, courts consider whether employees experienced:
- Demotion or salary reductions
- Reduction in job responsibilities
- Reassignment to menial tasks
- Reassignment to work under a younger supervisor
- Harassment or humiliation calculated to get the employee to quit
- Early retirement offers or continued employment on less favorable terms.
Recent case: Robert Coffman worked as an HVAC technician for the city of North Richland Hills until he took early retirement at age 56. He then sued, alleging he had been forced to take early retirement because his supervisor was harassing him because of his age.
The EEOC took up his case and told the court that Coffman had been called “grandpa,” “paps” and “old-timer” on many occasions. The lawsuit alleged he had been told he was working too slowly, was “stealing money” from the city by not working hard enough, could be replaced by a younger employee and was getting too old to work in the heat. According to the EEOC, those comments occurred almost daily and greatly upset Coffman—to the point he felt he had no choice but to retire.
The court said Coffman should have a chance to make his case to a jury. (EEOC v. City of North Richland Hills, No. 4:08-CV-558, ND TX, 2009)
Final note: The EEOC has been stepping up its enforcement efforts lately, throwing the entire weight of its legal staff behind cases that sometimes involve just a single employee. It’s yet another reason to enforce a zero-tolerance policy on harassment and discrimination in the workplace.
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- When employee gripes about differing treatment, be prepared to document everything
- Hiring or promoting? OK to discount experience if it's trumped by other factors
- Boss put foot in mouth? Consider settling—and protecting against future suits
- Be ready to explain if HR files include photos
- Ensure fair distribution of work opportunities