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Beware subtle age-bias peril: Don’t assume older employees are ready to retire

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in Discrimination and Harassment,Human Resources

Employees in this day and age often want or need to keep working despite advancing age. They may have lost savings during the Great Reces­­sion or otherwise remain un­­prepared financially to stop working and retire. If you force out those workers, you’re asking for trouble.

They may push back with an age discrimination lawsuit if their em­­ployer eliminated their position or pushed them into accepting retirement when they weren’t ready to quit on their own.

The best approach is to assume every employee wants to keep working unless they make it crystal clear they want to retire.

Recent case: Alexander, who was 72 years old when his job was eliminated, had worked for a school district since 1957.

He began as a custodial worker and worked his way up the ­ladder to director of maintenance and custodial services. According to his job description, his responsibilities included scheduling work orders, reviewing the quality of work performed by subordinates, assisting skilled workers on difficult tasks, maintaining inventory of equipment, planning and carrying out a preventive maintenance program, recruiting, training, and evaluating staff and assisting with budget preparation. He performed well without any significant disciplinary problems.

Each year, school district em­­ployees had to declare that they wanted to return the next academic year. Every­­one worked under one-year contracts. When Alexander turned in his forms, his supervisor began asking him about potential retirement. Alexander responded that he would retire only if he were paid for accumulated leave and some leave time he claimed to have lost when he was unable to take the time off during the school year.

After this conversation, the school board eliminated his position, effectively forcing him into retirement.

He sued, alleging age discrimination and that he had been forced out despite his intention to keep working indefinitely. In other words, he claimed that his position was eliminated because of his advancing years rather than for unrelated economic reasons.

The court said Alexander had enough evidence to take the case to trial. If a jury believes school officials wanted to force Alexander into retirement despite his intention to keep working, the school district can be liable for age discrimination. (Harris v. Powhatan County School Board, No. 12-2091, 4th Cir., 2013)

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