If an older employee has to be terminated, the fact that a boss had hinted that the worker should retire will make it easier to persuade a court that age was the real motivating reason for the discharge.
Recent case: Ivory Clemons, age 65, worked as a truck driver for Texas Concrete. One day he had trouble finding a job site, allegedly because the dispatcher gave him bad directions. Frustrated, he uttered a profanity over the company radio. Clemons was fired for breaking a rule against using obscene language over the radio.
He sued, alleging age discrimination.
He told the court that his supervisors had been on a campaign to get him to retire. According to Clemons, the supervisor barraged him with questions such as “When are you going to retire?” and “Aren’t you collecting Social Security?”
Clemons also showed the court that following a takeover of the company, the number of employees over age 60 had fallen dramatically. Plus, he showed that other employees who had used profanity on the radio hadn’t been fired, but had been given another chance. The trial court dismissed Clemons’ case.
Clemons appealed, and the Texas Court of Appeals reversed and ordered a trial. It said that when a supervisor who makes the termination decision has made comments revealing possible age bias shortly before termination, a jury should decide whether the termination was for legitimate reasons or merely a pretext for age discrimination. (Clemons v. Texas Concrete, No. 07-09-0034, Court of Appeals of Texas, 7th District, 2010)
Final note: When it comes to retirement, let HR do all the talking. For example, had an HR specialist notified all employees about their retirement benefits and invited them to plan for retirement, that wouldn’t have been the basis for an age discrimination claim.