Does An Employer’s Mention of “Retirement” Satisfy an Age Discrimination Claim?

I’ve been writing this blog long enough that, let’s just say, that retirement is closer than it was when I started. Heck, I’ve even had friends retire early recently.

But here’s a question that I sometimes hear: is an employer’s reference to retirement enough to satisfy a claim of age discrimination?

Not always but maybe when it is combined with other pieces of evidence, it can at least get an employee’s claim to a jury trial. At least according to a recent federal court decision in Connecticut.

In Daniels v. LMV Healthcare, Inc., a District of Connecticut court denied summary judgment on an age discrimination claim after the hiring manager made references to the plaintiff’s retirement status during and after the selection process. The employer won on the retaliation claims, but the discrimination case will go to a jury.

In that case, a laboratory technician with 41 years of experience and a preferred license, applied for an internal 24-hour per week position. She was competing with a recent graduate who held a per diem role. Both met the minimum qualifications.

During the interview, the hiring manager allegedly told the employee that she “didn’t need the job.” The recent graduate was hired. The stated rationale was operational: hiring him filled his per diem slot and avoided a scheduling gap.

What followed seemed to lead the court to send the case to a jury trial. In a meeting thereafter, when the employee noted the younger candidate might leave for a full-time job, the manager allegedly responded: “Well, you could do the same. You could retire.” In a later meeting, the manager allegedly referenced the employee being “semi-retired” and working less so she could retire. When HR interjected to clarify that age was not part of the rationale, the manager was hearing on a recording: “because she’s in that state, that she’s semi-retired, maybe she’ll decide tomorrow that she’s gonna retire.”

(It’s here that I have to note that part of the employee’s evidence was a recording of a conversation; it’s something I’ve discussed before. With technology, employers should assume that every conversation is being recorded.)

The court found that a reasonable jury could conclude the operational justification was developed after the hiring decision was already made. The manager communicated that Daniels was not going to get the job before she articulated any scheduling rationale. The court noted that retirement status can serve as a proxy for age when an employer targets employees based on assumptions tied to their proximity to retirement. The repeated retirement references — no matter how seemingly innocuous they were — permitted the inference at least for purposes of sending the case to a jury.

There’s no doubt a desire to talk about the obvious — retirement is part of the workplace. But if there’s going to be a discussion it should be clear that it’s being initiated by the employee (preferably in writing). And a discussion of retirement likely isn’t appropriate when discussing a hiring decision.

Did the employer here really do anything wrong? A jury will ultimately decide that question. It’s hard to fault the employer here but discussions of retirement may have been a reason why it’s getting sent there.