Monday, November 22, 2021

It’s a bad idea — and age discrimination — to badger an older employee about retirement

A new manager takes away a pet project from a long-term 60-year-old employee, repeatedly asks him when he's "going to retire," calls him "Uncle," and criticizes his "old skills." Those are the basic facts that caused the 6th Circuit to reverse a grant of summary judgment to the employer in Sloat v. Hewlett-Packard Enterprise Co.

Only after HP ultimately fired Sloat as part of a reduction in force, however, did he sue for age discrimination. 

The 6th Circuit had little difficulty finding sufficient evidence of age-based animus to support Sloat's age discrimination claim. 
Hewlett-Packard offers two responses as to the retirement badgering in particular. One is that Hagler's inquiries were "not frequent[.]" That response is inexplicable: one or two inquiries along these lines from one's boss might be dismissed as isolated; even more inquiries could form a pattern; but ten inquiries, a jury could easily find, is a campaign. Hewlett-Packard also responds that Hagler asked about Sloat's retirement plans "in the context of Hagler telling Sloat that he did not appreciate his constant emails." But that point merely views the evidence in a light favorable to Hewlett-Packard; that Hagler complained about Sloat's emails in these conversations does nothing to preclude the straightforward inference that Hagler thought Sloat should retire because Hagler thought he was too old for the job. In sum, Sloat has sufficient evidence that Hagler was biased against him because of his age.

Badgering an older employee about his or her retirement plans is just as unlawful as is forced retirement. One isolated inquiry might be justified as legitimate if there is reason to believe the employee is actually thinking about or planning retirement. Repeated inquires, however — especially when coupled with other incidents of age-based animus — is age discrimination. An employer cannot permit this to occur, a lesson that Hewlett-Packard is discovering the hard way.