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Don’t ‘retire’ someone before he’s ready

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in Discrimination and Harassment,Firing,Human Resources

Just because an older employee is preparing to retire, it doesn't give your organization the right to push him out the door.

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.

Employees will hit you with an age-discrimination lawsuit if they're fired right after disclosing their retirement plans. And courts will side with them.

Bottom line: Remind supervisors to make age-neutral employment decisions. And if you plan to fire, demote or discipline workers, make sure it's not right after they discussed their upcoming retirement.

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 new, 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. 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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