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OK to broach retirement option before layoff

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in Discrimination and Harassment,Human Resources

Merely informing an older worker that he or she may be eligible for retirement benefits while discussing a layoff isn’t evidence of age discrimination.

That’s a stray factual statement that may provide the employee with valuable and relevant information. It’s not an obvious sign that the employer is terminating the employee because of his or her age. Other­­wise, super­visors would be hard pressed to even discuss retirement benefits with em­­ployees who are being down­­sized or otherwise legitimately terminated.

Recent case: Donald, who was over age 70, worked for several years as a school bus driver. When Texas schools faced budget shortfalls, the school district decided to eliminate one of five bus driver positions. It decided to cut Donald because he had the worst performance record of the five.

A supervisor met with Donald to tell him of its decision. At that time, the supervisor mentioned that Don­­ald was “eligible for retirement.”

Then the Legislature restored funding and the district could again em­­­­ploy five bus drivers. It picked a teacher in his 50s who had expressed an interest in the extra assignment.

Donald sued, alleging age discrimination. As evidence, he pointed out that he had been replaced by someone significantly younger and that the supervisor mentioned retirement.

The school district argued it had terminated Donald through a legitimate reduction in force and refused to rehire him because he wasn’t the best candidate.

The court sided with the district, concluding that the retirement comment was merely a statement of fact and that hiring the better qualified of two candidates was perfectly legitimate. (Kilgore v. Brooke­­land Independent School Dis­­trict, No. 13-40005, 5th Cir., 2013)

Final note: Don’t be afraid to provide accurate and factual information about retirement options to employees facing layoffs or even termination.

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