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Handle soon-to-retire employees with care

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in Discrimination and Harassment,Firing,Human Resources

Issue: If an employee has one foot out the door, can you push the other foot out, too?

Risk: "Retiring" an employee before he's ready can open the organization to an age-discrimination lawsuit.

Action: Remind managers to make age-neutral decisions, and don't fire someone right after he or she announces retirement plans.

The federal Age Discrimination in Employment Act (ADEA), which outlaws job bias against people age 40 and older, does allow you to make reasonable inquiries into employees' plans, including retirement. But watch your timing.

Why? Employees will be quick to hit you with an age-discrimination lawsuit if they're fired, demoted or disciplined right after disclosing their plans. And courts will likely side with them.

Recent case: Dr. Gerald Strauch, 69, served as the head of a trauma department for 13 years. When a new director arrived, he asked Strauch about his plans. Strauch said he planned to retire in two years when his pension would be fully vested.

Soon after, the director hired a

younger replacement for Strauch, who

was offered a lesser job at lower pay. Strauch refused, was fired and then filed

an ADEA lawsuit.

The employer tried to argue that its decision didn't concern Strauch's termination itself, just the timing of his departure. He planned to leave anyway; this just speeded up the timetable. But the court didn't buy it, saying that considering an employee's age when determining the timing of a firing is no different than considering his age when making the firing decision itself. (Strauch v. American College of Surgeons, No. 02 C 3314, N.D. Ill., 2004)

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