It’s never a good idea for an employer to ask an employee who is subject to potential termination about their retirement plans. However, what happens if the employee raises their retirement plans in the context of a performance or disciplinary review?  According to a new decision from the Sixth Circuit Court of Appeals, these discussions are not evidence of an intent on the part of the employer to discriminate on the basis of age.

In Sims-Madison v. Dana Commercial Mfg., LLC, the employer was in the process of investigating co-worker complaints about the plaintiff’s behavior. During the investigation, the plaintiff said that she planned on retiring in five months. Based on this information, the employer devised a response to the complaints that took into account the plaintiff’s impending retirement. When the disciplinary issues continued, the employer again responded based on the plaintiff’s professed retirement plans. Instead, she ignored this offer and filed suit, alleging age discrimination.

The Sixth Circuit affirmed dismissal of the complaint on summary judgment. The court noted that if an employer pressures an employee to retire, this can serve as evidence of a pretext for age discrimination. In this case, however, the plaintiff was the one who raised her impending retirement. The employer’s use of this information to structure its response to complaints about her behavior could not serve as evidence of age discrimination.

Employers can (carefully) make inquiries about employees’ career plans as part of regular succession planning. However, these questions should not be raised by the employer when trying to determine how to respond to performance issues encountered with these employees.

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