Don't cross the line when suggesting retirement or questioning employees about their retirement plans.

Employers often suggest ideas to or question an employee about his or her retirement plans to actually save the employee from being involuntary terminated. For example, a common scenario may be a long-term employee over the age of 40 who is facing involuntary termination because he or she is not performing up to the company's expectations or is employed in a position that has been targeted for elimination as part of a reduction-in-force (RIF). Involuntarily terminating an employee over the age of 40 can lead to age discrimination (http://tinyurl.com/pmups) claims, so employers may attempt to convince an employee to voluntarily retire as a way to avoid an age discrimination lawsuit. The bottom line, however, is that employers may end up defending an age discrimination lawsuit as a result of repeatedly suggesting or questioning an employee about his or her retirement plans, as a recent federal court case instructs.

In Goodpaster v. Materials Handling Equip. Corp. (http://tinyurl.com/3yhw22s), a 59-year-old heavy-machinery salesman was terminated as part of an RIF. The federal court in Indiana held the employee could proceed with his Age Discrimination in Employment Act claims based on management's persistent questions about his retirement. The court held that while an employer's suggestion of retirement alone is not typically sufficient to prove age discrimination, “repeated and coercive inquiries” can be sufficient evidence of age bias. In this case, the employee alleged that management began questioning him about his retirement in August 2007 and continued to question him, despite his complaints about the retirement questions, until his termination in August 2008. The retirement questions were ongoing and the court held a jury could conclude that the employer consistently — and improperly — tried to coerce the employee into an early retirement due to age bias.

In short, the circumstances involving an employee's termination and the frequency of the retirement suggestions or questioning about an employee's retirement plans must be carefully reviewed to avoid “crossing the line” and thereby creating evidence of age discrimination. Accordingly, it is strongly recommended that any discussions about retirement with an employee be carefully reviewed by a human resources professional or legal counsel to avoid creating evidence of possible age bias.