Inquiring about retirement plans = age discrimination?

August 5, 2011
By Eric B. Meyer on August 5, 2011 7:00 AM | | Comments

'Carla Carpenter Retirement Party' photo (c) 2004, Grant Laird Jr - license: http://creativecommons.org/licenses/by/2.0/

Let's say that a company holds a meeting for older employees (all are over 49 years old). And the purpose of the meeting is to discuss the future expectations of the employees in attendance, including retirement options at the company. Then throw in a stray remark from the company, something like, "When people get older, they tend to slow down."

What if one of the meeting attendees is later laid off? Is that age discrimination?

If the employer has any non-age-related reason for the layoff, then the answer is no, according to this federal court in Arkansas.

The court was presented with no case support for the position that a meeting to discuss retirement options is inherently unlawful or discriminatory. As for the stray remark, it would constitute circumstantial evidence that, when considered with other evidence, may give rise to a reasonable inference of age discrimination. However, if that stary remark is not directed specifically at the plaintiff, then its probative value is nil.

So, essentially...

The bar for age discrimination is hella-high.

For there to be age discrimination, age has to be the "but for" cause of termination. That is, the employee must show that any legitimate business reason espoused by the employer to justify the discharge is not only false, but also that age was the real reason for the firing.