“You’re old enough to retire, right?”

Get somebody at your company to say these magic words three times, click your heels, and your company may be liable for a $2.5 million jury verdict for age discrimination.

That’s the lesson of Castelluccio v. IBM Corp., decided last week in Connecticut.

James Castellucio worked at IBM from 1968 through 2008, including service as a vice president overseeing 2,500 employees. But when IBM assigned a new supervisor to Castellucio, the ageist comments started and soon thereafter he was fired at age 61. The new supervisor admitted at trial that she knew asking Castellucio about his retirement plans – after he said he wanted to stay at IBM – was illegal, yet she did it three times.

That was enough for the jury – which awarded the $2.5 million verdict – and the judge – who ruled the comments were direct evidence of age discrimination, and tacked on a $1.2 million award of attorneys’ fees. Our guess is that Castellucio can retire now.

Although it may seem surprising, we frequently see situations in which managers use some form of the word “retirement” when dealing with the displacement of older workers. Don’t use that word. Do not assume a worker in his or her 60s or 70s wants to retire. And don’t do anything you know is illegal three times in a row.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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