Discussing employee retirement plans: Legal risks and considerations

The Eighth District Court of Appeals in Cuyahoga County, Ohio, recently reversed a trial court’s grant of summary judgment in the age discrimination case Selzer v. Union Home Mtge. Corp., 2026-Ohio-38. The appellate court found that the plaintiff presented sufficient direct evidence to warrant a trial. This decision underscores the legal risks employers face when inquiring about or commenting on an employee’s retirement plans, especially when such remarks are made by decision-makers near the time of termination.

Background

The plaintiff, a 64-year-old former employee, alleged that his termination, purportedly due to a reduction-in-force (RIF), was actually motivated by age discrimination. He pointed to the hiring of a substantially younger, less qualified replacement. Central to the claim was evidence that supervisors and decision-makers repeatedly inquired about his retirement plans and referenced his proximity to retirement in communications related to his dismissal.

The appellate court emphasized that age discrimination claims can be proven through direct evidence of discriminatory intent or by establishing a prima facie case under the burden-shifting framework. The court found that the plaintiff’s evidence, including frequent retirement-related inquiries and an email from a vice president explicitly referencing the plaintiff’s retirement status as a factor in the termination, constituted direct evidence sufficient to create a genuine issue of material fact.

The court applied established factors to assess whether such statements amount to direct evidence of discrimination:

(1) whether the statements were made by decision-makers;

(2) whether they were related to the decision-making process;

(3) whether they were more than vague or isolated remarks; and

(4) whether they were made proximate in time to the termination.

The court concluded that the pattern and timing of these comments, coupled with their direct relevance to the termination decision, met the criteria for direct evidence of discrimination.

Implications for employers

This decision serves as a cautionary reminder that comments or inquiries about an employee’s retirement plans, even if made innocently, may be construed as evidence of age-based discriminatory intent, particularly when made by those involved in employment decisions. Employers should train supervisors and decision-makers to avoid discussing retirement with employees unless the employee initiates the conversation. Even well-intentioned remarks can expose the organization to liability if they are perceived as influencing adverse employment actions.

The appellate court’s reversal and remand for further proceedings highlight the importance of evaluating direct evidence and pretext in age discrimination claims. Employers are advised to exercise caution in all communications regarding retirement and to ensure that employment decisions are based on legitimate, non-discriminatory factors, supported by clear documentation. Supervisors should be educated on the risks associated with retirement-related discussions to mitigate potential liability.