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Dec 8, 2011

By Eric B. Meyer

Back in August, I wrote about a case where a federal court held that an employer inquiring about an employee’s retirement plans, alone, does not discriminate on the basis of age. But what about relentlessly browbeating a plaintiff into retiring? Could that be age discrimination? What do you think,

The case is Franks v. Village of Bolivar. Gary Franks, the former Water and Street Superintendent for the Village of Bolivar, Ohio was terminated after 33 years on the job. Franks subsequently sued, claiming that his former boss, Mayor Rebecca Hubble, made several ageist comments to him which suggested that age motivated his firing:

According to Franks, he had several encounters with Mayor Hubble that constitute direct evidence of age discrimination. He states that Hubble had: (1) “repeatedly and relentlessly badgered [him] to retire”; (2) “told [him] on numerous occasions that she was the `ultimate boss’ and could fire him if she desired to do so”; (3) “told [him] that he could go work `on a farm'”; and (4) had “told [him] that she would throw a big party if he would leave his job”. The complaint notes that Franks’ termination occurred within a short temporal proximity to his planned retirement. Franks further alleges that the Mayor “conveyed these messages knowing full well that the [he] was on the verge of retirement.” Franks argues that a reasonable inference of age discrimination can be drawn from these statements and their temporal proximity to his expected retirement.”

Badgering questions can become age discrimination

Franks alleged enough to convince the court that he may have a tenable age-discrimination claim. In Ohio, direct evidence of discrimination occurs when either the decision-maker or an employee who influenced the decision-maker made discriminatory comments related to the employment action in question.

The Court here found that Franks had alleged just enough direct evidence of discrimination in his complaint to be able to pursue his claims further.

Specifically, it noted that while vague, isolated comments are not evidence of discriminatory intent, repeated inquiries about a plaintiff’s intention to retire could suggest an age-related impetus for his eventual firing. Further, the courts have held that an employer’s statements, can amount to direct evidence of age discrimination if a plaintiff can show that the defendant used the term “retire” as a “proxy for age” to express or accomplish age discrimination.

So employers, if you would like to know when one of your employees plans to retire, it may be best not to lay it on too thick. Maybe one question, one answer will do the trick. And just make sure that question is not, “Hey geezer, when are you and your old bones gonna go out to pasture?”

Attorney Eric Meyer will be leading a group of HR pros in a panel discussion on Social Media in the Workplace – Where is it Today, Where is it Going Tomorrow? at the TLNT Transform conference in Austin, TX Feb. 26-28, 2012. Click here for more information on this event. 

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.