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OK to suggest retiring in lieu of getting fired: It’s not age discrimination

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in Discrimination and Harassment,Human Resources

Employees who claim they have experienced age discrimination must prove that age was the reason for an adverse employment action, such as termination or demotion. It’s not enough to show that a supervisor merely referred to the employee’s age.

As the following case shows, merely suggesting retirement in lieu of discharge isn’t enough.

Recent case: Thomas Smith directed recreational programs for a municipality and was over age 40. He also had a history of deficient performance and was on a performance improvement plan when the city elected a new mayor.

The mayor reviewed Smith’s performance history and concluded he didn’t have the talent to lead the recreation department. He told Smith that he had a choice: retire or face termination. The mayor gave Smith the option of staying on until he reached age 55.

Smith did retire and then sued, alleging age discrimination.

But he could offer no evidence that his age was the reason for his termination other than the mayor’s suggestion that Smith retire. In fact, the court pointed out that deferring his termination to age 55 actually was beneficial since it meant a bigger retirement check. The court tossed out the case. (Smith v. Allentown, No. 09-1998, 3rd Cir., 2009)

Final note: Of course, you still want to discourage ageism. There’s no legitimate reason for supervisors or managers to dwell on the age of employees. Focus instead on objective performance measures.

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