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Don’t assume all retirement-eligible employees ‘lack commitment’ to job

February 19th, 2015  |  Joy Waltemath

By Joy P. Waltemath, J.D.

Ah, employee engagement. It’s that magic elixir touted by consultants as critical in order for employers to be able to execute on strategies for future growth. Employees who are deemed to be “engaged” exhibit traits variously defined as “Preach, Plan, and Pursue” (Quantum Workplace) or “Say, Stay and Strive” (Aon Hewitt). In essence, these traits are the same: Engaged employees speak positively about their workplaces (preach or say); they are strongly interested in staying with their employer (plan or stay); and they exert extra discretionary effort on their employer’s behalf (pursue or strive). Engaged employees are much desired, according to the popular narrative, because their discretionary efforts help businesses grow, innovate, and prosper.

Lack of commitment? So it wasn’t surprising when a city looked critically at a 51-year-old police lieutenant’s “commitment” to the job of police chief for which he had applied. But the city’s mistake, according to the Eighth Circuit in Hilde v. City of Eveleth, was evaluating his commitment solely on the basis of his age-based retirement eligibility. Because the court found the city denied him the job based on his age, it revived the lieutenant’s age discrimination lawsuit.

Retirement eligibility. Notably, the city did not deny that it considered the lieutenant’s retirement eligibility in making its decision to award the job to a candidate eight years younger, arguing that retirement eligibility was evidence of an employee’s lack of commitment to a job—a legitimate concern, the city said, given the importance of employee engagement. And generally, employment decisions motivated by factors other than age (such as retirement eligibility, salary, or seniority), are not age discrimination even when those factors correlate with age. But this is true, stressed the court, only if the factors other than age are wholly independent from age.

Age-based stereotyping. In this case, the court stated, “retirement eligibility is always correlated with age because it is dependent on the employee reaching 50; it cannot be ‘divorced from age.’” As a result, when the city assumed that the lieutenant was not committed to the police chief position because his age made him retirement-eligible, it engaged in prohibited age-stereotyping, the court explained. This prohibited stereotype—older employees are likely to be less committed to a job because they can retire at any time—figured in the city’s decision.

Erroneous assumption. Not only was it age-stereotyping, it might well have been wrong. There is at least some evidence in the engagement research that older workers are the most engaged, although obviously not every consultant breaks down its research by age. In 2013, example, Quantum Workplace reported that an analysis of engagement by age showed that baby boomers were the most engaged. Specifically, “employees 66 years old and older were the most engaged at 79.5 percent, followed by the younger boomers, ages 56 to 65, with 72.3 percent engaged.  Following baby boomers, the youngest millennials, 25 years old and younger, were the next most engaged with 71 percent. The least engaged group of employees by age were the oldest millennials, 26 to 35 years old, of which 66.7 percent were engaged. A gap of nearly 13 percentage points existed between the least and most engaged age groups.”

City never even asked about his commitment. Back to the city and the police lieutenant’s commitment, or lack thereof: The city failed to provide any evidence that it doubted the lieutenant’s commitment to the job for any reason other than his age-based retirement eligibility. The three commissioners responsible for hiring and promoting city police employees admitted he had a great reputation in the force and that they held his continued service in the highest regard. And while the city argued that he should have convinced them he would not retire, the commissioners never even asked about his job commitment or his retirement plans. That meant to the court that the city had failed to meet its burden to articulate a nondiscriminatory (non-age-based) justification for its reliance on the employee’s retirement eligibility. As a result, the Eighth Circuit reversed summary judgment for the employer and remanded the case back to the district court.

Don’t apply any stereotype. According to Oxford Dictionaries, a stereotype is “a widely held but fixed and oversimplified image or idea of a particular type of person or thing.” One purpose of the discrimination laws in general is to avoid decision-making based on stereotypes. Assuming, without more, that every employee who is eligible to retire due to age lacks commitment to the job (or to a promotion for which he or she has applied) not only violates the age discrimination laws, but it runs counter to employee engagement research suggesting that older employees actually might be more engaged than younger. Relying on either “stereotype,” however, instead of viewing an individual’s actual attributes and qualities, is a mistake employers should not make.

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