Peyton Manning and retirement–Super Bowl lessons on avoiding age claims at work

Super Bowl week is here. Everywhere you look (and I mean everywhere) this week, you will be reminded that the “big game” is this Sunday. You’ll be told what kind of chips to munch, the type of pizza to order, the beer, and soft drink to drink, the television or mobile app to watch it on, etc. It’s as if it’s some big media circus instead of a football game! NEWARK, NJ - JANUARY 26, 2014: Denver Broncos' Peyton Manning ar

If you listen closely, though, you might also hear about the two teams playing—the Denver Broncos and the Carolina Panthers. This year’s match-up offers great story lines that even the best WWE writer couldn’t dream up. The one you are most likely to hear about, though, is the battle between the two quarterbacks. The Broncos will field Peyton Manning (whose records and accomplishments should speak for themselves) and the up-and-coming Cam Newton, who led his team to a 15-1 regular season record and only the second Super Bowl appearance in the franchise’s history. The two quarterbacks’ personalities (and styles) couldn’t be more different. Manning’s persona is strictly business, and he frequently out-humbles even himself during interviews. Cam, on the other hand, is a bit flashier, having drawn negative attention throughout the season as a result of his penchant for dancing after scores.

Peyton Manning’s other competition this weekend is Father Time, a relentless competitor who remains undefeated across all sports. Peyton Manning is only 39. But, by NFL measure, he is practically ancient. To put it in perspective, he’s two years older than the next oldest starting QB (whom he defeated last week in the AFC Championship). He’s also the oldest QB to ever start in a Super Bowl, just ahead of his current boss and former Denver Broncos great, John Elway. To be sure, there is no mandatory retirement age in the NFL. Several QBs have played into their 40s. George Blanda even played until he was 48! But, with mounting injuries, that’s not likely to be the case for Manning.

Aging superstars are also likely part of your company. Indeed, a 2014 BLS study showed the U.S. workforce has never been older. Handling workers in their “golden years” can be somewhat tricky. Once an employee reaches the age of 40, he/she gains a new protected class status under federal lawage discrimination. Some states offer the same or similar coverage. It’s at this point that joking with an employee about his eventual retirement goes from playful to painful.

In a recent case, for example, a physician practicing at a Pennsylvania hospital filed suit alleging that when he had expressed an interest in renewing his contract, hospital administrators commented that they assumed the 63 year old would be retiring. The court held the administrators’  statements could form a basis for a jury to either disbelieve the hospital’s asserted reasons for terminating the physician’s contract. Similarly, an Alabama district court recently allowed a pharmacist’s lawsuit to proceed to trialeven where his employer cited numerous examples of the pharmacist’s poor performancebecause his supervisor made certain age-related remarks including asking the pharmacist whether he “planned to retire soon.”

These examples show that age-related comments can undermine even the most legitimate disciplinary actions. Employers would be well served to take certain steps to minimize this risk, including keeping HR professionals directly involved in the performance management process, which includes the communication of employment decisions to employees. Managers should be coached on how to discuss possible adverse actions with employees, to ensure they are aware of sensitive topics to avoid. In particular, managers should be counseled to avoid asking the employee about his/her retirement plans unless required by the business at hand. As Peyton Manning would tell you, preparation is key in all things.