"I think you just hit somebody."
Billy Bragg Releases New Song "City of Heroes" Supporting Minneapolis Protesters: Stream — via Consequence

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Employers face a legitimate—and growing—problem: if older employees aren't retiring on schedule (or at all), how do you plan for leadership transitions and future staffing needs without committing age discrimination?

The answer starts with recognizing that today's workforce doesn't retire the way it used to. Many employees expect to work past 65, often for financial reasons or because they want to stay active and engaged. Employers who build succession plans around outdated retirement assumptions are setting themselves up to fail.

What doesn't work (and is illegal) is pressure. You can't demote older employees, cut their pay, strip responsibilities, or make their jobs unpleasant in hopes they'll "choose" to retire. That’s not workforce planning—it's an age discrimination constructive discharge claim waiting to happen.

So, what does work?

First, make retirement financially possible. Employees retire when they can afford to. Offer a strong retirement plan, encourage participation, and structure employer matches to promote meaningful savings. The easier you make it to save, the more likely employees can eventually step away.

Second, educate employees early. Many workers underestimate what retirement actually costs. Work with plan providers to offer guidance on saving and investing, and make clear that loans and early withdrawals undermine long-term security.

Third, eliminate the all-or-nothing choice. Retirement doesn't have to mean walking out the door for good. Offer voluntary phased-retirement options—reduced schedules, part-time roles, job sharing, or transitions into mentoring and training positions.

Fourth, standardize succession planning around roles, not people. Succession plans should attach to positions and critical functions, not to specific employees. When planning is role-based and applied consistently across the organization, it looks like legitimate business planning—not an effort to target older workers.

Finally, gather workforce insight the right way. Instead of asking older employees when they plan to retire (don't), use stay interviews to understand what keeps employees engaged and what might cause them to leave. Just as important, do this for everyone, not just older workers. When stay interviews are a uniform practice across age groups, they provide valuable planning insight without creating age-discrimination risk.

The bottom line: You can't force older employees to retire. But you can create conditions that make retirement a realistic, voluntary option—while giving your business the time and structure it needs to plan for what comes next.

"When are you retiring?" That's not an employer's call to make.

Here's a rule that employers still manage to forget or ignore: the decision about when to retire belongs to the employee. Start nudging. Start hinting. Start asking. Start factoring it into employment decisions. And you're flirting with, if not outright committing, age discrimination.

An Ohio appellate court recently reinforced that lesson in Selzer v. Union Home Mortgage, reversing summary judgment for the employer and sending an age discrimination case back for trial.

Greg Selzer was a 64-year-old loan officer assistant. According to the record, his supervisors repeatedly pressed him about his retirement plans. Then came the email that mattered most: a vice president involved in the termination decision wrote that Selzer "keeps saying he will retire but hasn't." Another executive admitted that the purpose of that email was to justify why Selzer landed on the reduction-in-force list. And another employee confirmed that Selzer's proximity to retirement factored into the decision to terminate him.

The trial court bought the RIF explanation and dismissed the case. The court of appeals did not.

A plaintiff can prove age discrimination claims by direct or indirect evidence of discriminatory intent. In this case, the appellate court made clear that repeated inquiries about retirement when made by decision makers and tied to a termination decision qualify as direct evidence.

Yes, courts have said that merely using the word "retire" isn’t automatically discriminatory. But context matters. Here, the comments were frequent, made by supervisors, closely tied to the discharge, and—most damning—used as a justification for termination.

The employer argued it was just planning ahead. And believe me, I get it. When an employee eventually does retire, without proper succession planning, you could be caught off guard, scrambling to replace institutional knowledge and forced into a rushed and risky replacement decision. Courts, however, remain skeptical, and often recognize that "longevity" is just a proxy for age. Changing the label doesn't change the motive.

The takeaway for employers is simple:

Don't ask when employees plan to retire.
Don't speculate internally about retirement timelines.
And don't document retirement assumptions in RIF decisions.

Let employees retire when they choose. Support them in that decision. (I offer some tips on how to do that here.) Employees decide their retirement date. Employers don't get to decide for them—and those that try may find themselves staring down the barrel of an age discrimination lawsuit.

Have you heard about the small toy store owners in St. Paul, MN, who complained about ICE on their local news. They went on camera. They criticized ICE. Loudly. Publicly. Three hours later, two plainclothes ICE agents reportedly walked into the store and served a Notice of Inspection—an I-9 audit request.

And we're supposed to believe that timing is just… coincidence?

This is what retaliation looks like.

Retaliation cases rarely come with a smoking-gun email that says, "Punish her for speaking up."

Instead, they often look like this:

🎯 Someone engages in protected activity (complains about discrimination, harassment, safety, wages, leave, etc.).

🎯 The employer says, "We take this seriously."

🎯 And then… suddenly… something bad happens. A write-up. A demotion. A schedule change. A PIP. A termination. And management insists, with a straight face: Unrelated.

Document the legitimate reason

Apply the rule consistently

Involve HR and legal early

Today at 10 a.m., the EEOC is scheduled to vote on whether to rescind its 2024 Enforcement Guidance on Harassment in the Workplace. 

Dry January isn't a moral virtue or wellness trend. It's an economic gut punch. The 1st nominee for The Worst Employer of 2026 is … The Harassing, Retaliating, Evidence-Erasing Employer. WIRTW #786: the 'propaganda' edition When “irreparable harm” isn't: 8th Circuit slams brakes on a noncompete injunction Filing an EEOC charge doesn't automatically buy an employee job immunity