As Baby Boomers are reaching and working beyond the age of 65, age related discrimination cases are on the rise. Employment lawyers report that clients having retirement-related conversations with older staff are finding such conversations increasingly difficult, because of this risk. Although retirement conversations do not always reflect discriminatory motivations, without poor performance as a reason to dismiss older workers there may be grounds for suit.
Age discrimination may be harder to prove, however, than gender, disability, or racial discrimination. Instead of employees being encouraged to either retire or be terminated, older employees may be fired for other reasons. Furthermore, when discrimination cases involve older employees at upper-management levels, issues can be complicated when plaintiffs are business partners. In such circumstances, laws protecting against age discrimination may not apply.
In circumstances involving succession planning versus forced retirement, such conversations can still be thorny. Such ambiguities have prompted the U.S. Equal Employment Opportunity Commission (EEOC) to become involved in some cases. Despite the fact that succession planning can be a legitimate cause for reevaluating employee needs, the wisest move for employers may be to avoid any conversations or questions that probe retirement plans of an older staffer.
Not treading cautiously can be costly. Because a victory at trial may be outweighed by the court costs, employers commonly will opt to settle a claim rather than continue to trial, even in the likelihood of winning. For further discussion of this important issue, check out the article here.