When employees reach typical retirement age, employers frequently wonder about their future plans. Employers are hesitant to raise the issue with older employees out of concerns that they will be accused of pushing the retirement idea. Last month in an unpublished decision, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) cautioned employers against suggesting retirement and then later claiming that it was the employee’s idea in the first place.
 
Harris v. Powhatan County. Sch. Bd. involved a 72-year-old school custodian. The plaintiff filed regular paperwork notifying the district of his intent to return for the following school year. In response, the plaintiff’s supervisor informed him that his job may be eliminated before the start of the next year. The plaintiff claimed that he discussed retirement with several supervisors, but only on the condition that he would receive certain accrued paid benefits. He claimed that the administration informed the school board of the retirement decision, and that his position was eliminated without the financial stipulation. He sued claiming age discrimination.
 
The Fourth Circuit reversed a grant of summary judgment for the school district and remanded the matter for a jury trial. The court concluded that the plaintiff never expressed any clear intent to retire. He was only considering the idea, and it was conditioned on the additional payments. The county could not rely on the school board’s lack of knowledge of the plaintiff’s intent at the time the decision was made, because his supervisors knew of these conditions. Moreover, the plaintiff showed that he was pressured to retire, and that all three eliminated custodian position involved employees over 70 years of age.

When discussing future plans with older employees, the employer should carefully script the conversation. While a mere inquiry about future plans is not evidence of age discrimination, pressuring the employee to retire, or threatening termination if this decision is not made can call into question the employer’s motivation behind an eventual termination decision. In almost all cases, employers cannot force an employee to retire absent performance or business reasons that are not premised on age alone.