When an employer meets with an employee to solicit opinions from retirement-age employees as to ideas for retirement packages the meeting itself does not constitute evidence of age discrimination, a court recently held. In McWhorter v. Maynard, Inc. (W.D. Ark. July 19, 2011), the former employee alleged violations of the Age Discrimination in Employment Act (ADEA) and ADA against the defendant employer. As part of her ADEA claim, the employee alleged that her employer held a meeting with individuals over the age of 49 to discuss retirement options at the company. The company held a second meeting during which retirement-age employees shared ideas about possible retirement plan options.

The court ruled in favor of the company on both claims of discrimination. In analyzing the age discrimination claim, the court noted that the meetings with retirement-age employees to discuss possible retirement package ideas served the purpose of soliciting ideas "from the people he [president of the company] thought would be most interested in participating in those programs." The court added:

Plaintiff has cited to no case which holds that there is something inherently unlawful or discriminatory about an employer holding a meeting to discuss possible retirement packages with those employees who, based on their age and/or tenure with the company, might be interested in such a discussion.

In finding the meetings to discuss ideas for retirement packages permissible, the court recognized the usefulness of gaining retirement-age employees' input into possible retirement packages, and provided some protection for employers who hold such meetings. Of course, the language used by a company in these meetings should be scripted and clear. For example, the employee in McWhorter also alleged that the president of the company made discriminatory comments about the employees' ages at the meeting. While the McWhorter court rejected the alleged comments as "stray remarks," it at least indicated that questionable comments made during a meeting with retirement-age employees to discuss ideas for retirement packages may raise the sensitivity level for such comments. Even though such meetings are not a per se violation of age discrimination laws, they must be conducted carefully and with sensitivity to employees who attend.