No good deed goes unpunished. It is an axiom that sometimes applies in employment law. You may think you are softening the blow for an employee caught in a downsizing to suggest it is a good opportunity to kick back and retire. It just feels like a better message than telling someone they no longer have a job. But by trying to make the decision easier to hear, are you giving that employee ammunition for an age discrimination lawsuit?

Context will determine if statements about retirement will be considered evidence of age discrimination. Courts look at who is making the remark, when the remark is made, whether a reasonable jury could consider the remark discriminatory and whether the remark was made in relation to an adverse decision.  Single stray remarks about retirement may not be evidence of age discrimination. And an employer is generally allowed to make inquiries into an employee’s retirement plans.

But courts have found that statements about retirement, when coupled with surrounding facts, can help an employee show that age was a consideration in a termination or other adverse employment action. Here are some examples:

  • A priest’s statement, during the first meeting with a church secretary about the possible elimination of her job for financial reasons, that she might consider retiring was found to be possible evidence of discriminatory intent.  Williams v. St. Joan of Arc Church.

  • An employee whose salary and hours were cut was able to show age discrimination may have been a factor in the decision where her supervisor said he thought she would like to have more time at home with her retiring husband and that he would just retire if he were in her shoes. Genung v. Northwest Radiology Network P.C.

  • A 56-year-old marketing director was able to point to suggestions that he retire, made by the company president during a meeting regarding his termination, as evidence that age was a factor in the decision. Carlton v. Mystic Transportation.

The basic lesson is to stick to the facts when communicating a decision that affects an employee’s job status. In the cases above the employers offered legitimate reasons, such as poor performance and financial difficulties, for the decisions to cut hours or eliminate positions.  But in each case statements about retirement made during discussions with the employees – no matter how well intentioned – showed that the decision maker was aware of the employee’s age when making the termination decision and thus became evidence in an age discrimination lawsuit.

Get up-to-date news and expert analysis from respected practitioners and Bloomberg BNA's legal editors, and practical research tools with a free trial to the Labor & Employment Law Resource Center .