Business succession planning without age discrimination

Texas employers know that one important part of business planning is planning for succession, but it is also necessary for employers to walk a fine line between making plans around an employee’s retirement without being discriminatory toward that employee due to age. Exceptions are if the employee is an executive or age is related to job performance. An employer can discuss retirement prospects with an employee, but the employer must not intimidate the employee in any way.

In order to reduce the likelihood of an age discrimination lawsuit, employers should avoid tying layoffs to retirement dates and avoid using any language that suggests they are looking for workers who are younger. Employers can avoid most potential problems by simply avoiding making age-based assumptions. Succession planning should also not be tied solely to age and retirement. Employees of all ages may move on unexpectedly, and employers should have a succession plan in place for all positions. Supervisors should be trained so that they do not inadvertently behave in a coercive manner toward an employee who is near retirement.

Age-related discrimination lawsuits tend to be successful when it is possible to tie a worker’s treatment to comments made in reference to the employee’s age. In contrast, one postal employee was unsuccessful in his suit because employers were able to demonstrate that there were other factors unrelated to his age that prevented a promotion.

Even with diligent training, employers may find themselves the target of an age discrimination lawsuit. If this occurs, having legal representation as well as good documentation regarding the treatment of the employee and the employee’s work performance may be valuable. Courts are looking for a certain standard of reasonableness, and if a company can demonstrate that they let a worker go or otherwise made decisions about a worker based on factors other than age, such a lawsuit may be unsuccessful.

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