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Employers warned not to issue "retire or be fired" ultimatum

Sometimes a choice is not really a choice. Two examples of the no-choice phenomenon are found in Sophie's choice and Hobson's choice: in both, the person making the decision is forced into a no-win situation.

The same can be said of employees pushed out the door by an employer offering two objectionable options: retire or be fired. A business publication warns employers tempted to offer this "choice" that "a forced retirement is sometimes the legal equivalent of being fired." In some cases, the ousted employee will file a lawsuit citing violations of the Age Discrimination in Employment Act (ADEA) or the Wisconsin Fair Employment Act (WFEA).

Even worse than the cost of litigation for an employer in that situation, of course, is the real possibility that they will lose in court and be ordered to pay significant compensation to the former employee.

Business Management cites the case of Martha, a case worker over the age of 60 who reviewed Medicaid paperwork. Diagnosed with depression that was triggered by menopause, she took FMLA leave.

Upon her return to the agency, she was subjected to extra scrutiny and criticism and then offered a no-win choice: retire or be fired.

She chose retirement, but filed a lawsuit claiming that she had been subjected to age discrimination. Her former employer's response was that she had voluntarily chosen retirement and that retirement isn't an adverse employment action. The agency asked the court to dismiss her claim.

The court came down on Martha's side, however, the business publication reports, allowing her age discrimination lawsuit to continue.

To discuss a possible claim under the ADEA or WFEA, contact a Milwaukee employment law attorney.

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