Back in August, I blogged 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, Brett?
The case is Franks v. Village of Bolivar. Gary Franks, the former Water
and Street Superintendent for the Village of Bolivar, 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.
Mr. 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 Mr. 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
One other suggestion. If you like the Employer Handbook blog, please take
a few seconds and vote for it. No discrimination there.
This article was originally published on Eric B. Meyer's blog, The Employer
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