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Retire or get fired? Prepare for lawsuit

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in Discrimination and Harassment,Human Resources

Faced with the choice of retiring or being fired, someone who retires may be able to argue that they were constructively discharged.

Recent case: Martha began taking FMLA leave after she began experiencing menopause and developed related symptoms such as depression and sleeplessness.

While she was out on FMLA leave, supervisors allegedly uncovered mistakes involving improperly completed forms. Martha claims she was offered a choice: Either retire or be fired. She decided to retire.

Then she sued, alleging she had been constructively discharged and that she had been terminated because she was old. She showed that someone 15 years younger replaced her.

Martha’s former employer argued that retiring could not be the basis for constructive discharge.

But the court disagreed. It said that offering someone the option of retiring or being fired could be seen as no option for a reasonable employee.

It then said her age claim could go forward. It turns out that Martha’s supervisor had told her how to fill out the forms, and that Martha had carefully followed those instructions. That, according to the court, could be seen as evidence that her alleged mistakes were merely an excuse to get rid of her and replace her with someone much younger. (Cruz v. Texas, SD TX, 2017)

Final note: If you offer retirement as an alternative to discharge, consider sweetening the pot with a payment in exchange for waiving legal claims. Consult your attorney for help drafting the release.

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