Age discrimination is a serious problem in the workplace. It’s estimated that more than 60% of older workers have experienced some type of age discrimination. Any claim of discrimination can be costly to a business. Fighting a claim against the EEOC or in court can be expensive, regardless of whether you are actually guilty or not. A new case out of the Sixth Circuit helps employers understand what is allowed and what isn’t.
Employee-driven conversation about retirement does not lead to age discrimination!
In Sims-Madison v. Dana Commercial Manufacturing, LLC, Sims-Madison claimed age discrimination when the company terminated her employment after 15 years. She had been working for Dana since 2003. In 2017, Dana suspended her for allegedly hurling expletives and being disrespectful toward other employees. A year later, there were complaints of similar misconduct. Dana again suspended Sims-Madison, this time for five days. They also explained that their intent was to discharge Sims-Madison. Complaints against Sims-Madison kept coming in.
Dana decided to terminate her employment, but Sims-Madison asked to be considered for “retirement immediately in lieu of disciplinary action.” Dana agreed and sent the offer to Sims-Madison, but Sims-Madison never responded. Dana terminated Sims-Madison’s employment. Sims-Madison sued Dana. The district court granted summary judgment to Dana. Sims-Madison appealed. The Sixth Circuit held the district court’s ruling.
Sims-Madison alleges that it was age and race that preempted her termination, but the Sixth Circuit held that it was Sims-Madison who introduced the idea of retirement to the company. The company never wanted to terminate Sims-Madison because of her age or race. There was no pressure on Sims-Madison to retire due to her age or race. Dana had not terminated Sims-Madison due to age, but due to her actions and lack of response to their offer of retirement.
The takeaway for employers
While employers should tread carefully when asking employees about their retirement plans, because it can be evidence of age bias, there’s no reason to avoid the conversation completely. When an employee brings up retirement, have the conversation. Document everything about the conversation.
