A predicted wave of retirements of tenured faculty is presenting colleges with opportunities and practical and programmatic concerns -- as well as legal considerations, according to a report released today by the American Council on Education.
“Retirement incentives raise a host of complex questions under the tax code as well as federal laws protecting employee benefits,” wrote Ann H. Franke, president of Wise Results and a frequent legal adviser to colleges, in “Supporting the Culminating Stages of Faculty Careers: Legal Issues,"  which is being released today in tandem with a webcast presentation on the subject.
Clear, deliberate communication between administrators and faculty, she wrote, especially about such issues as workload, tenure status and tax liabilities, will help diminish the risk.
Such an approach would be different from the stance many colleges assumed before Congress abolished the mandatory age of retirement for faculty members in 1994. “The passive strategy of waiting for mandatory retirement is no longer an option,” she wrote.
The 1994 change in the law coupled with an aging professoriate  and a persistent strain of age-related bias has made legal complaints under the Age Discrimination in Employment Act increasingly likely. Franke describes “stray remarks” on, say, the need for fresh blood in a department, as helping to support the impression that an institution discriminates on the basis of age. She also cites, from the AARP, a list of words that, if used in talking to aging faculty, might strike some as demeaning: behind the times, doddering, feeble, foolish, fragile, fuddy duddy, gray, outdated, over the hill, senile, sweet, withered, wrinkled -- and even overqualified.
But easing tenured faculty out of their positions is tempting to universities that are coping with bleak budgets. Last month, the University of Nevada at Las Vegas announced that 48 tenured faculty had taken a buyout plan  that staved off the need to lay off tenured faculty.
Such efforts must be handled adroitly. Franke cites U.S. Equal Employment Opportunity Commission data that show the number of age-related complaints filed with the EEOC increasing 45 percent since 2000. At the same time, the number of overall complaints of discrimination also has increased, which means age-related causes of action have consistently represented about one-fifth of the cases taken up by the EEOC over the past decade (age-related complaints of retaliation have been on the rise, however).
The report recounts several cases in recent years in which unclear communication, poor training of administrators, flawed policies or discriminatory practices have cost colleges. For example, Franke writes about the EEOC suing  the University of Louisiana at Monroe in 2005 for age discrimination and retaliation on behalf of a retired professor and dean who was barred by policy from being rehired after his retirement. The policy disqualified one group -- older faculty, the EEOC argued. The suit was settled for $450,000 , Franke wrote, the policy was repealed, and the university promised to train managers and supervisors on discrimination and harassment.
In another case she cites, a court ordered Fort Hays State University to reinstate Thomas Guss, a professor of educational administration and counseling, and pay him the unpaid salary due to him. In the second year of a five-year, phased-retirement contract, Guss objected to the diminished course load the university was offering him. Fort Hays severed the agreement, saying his refusal to show up under these conditions was tantamount to abandoning his position, which was grounds for termination, Franke wrote (the contract specified that the scheduled reduction of hours would be adjusted annually by mutual agreement).
This case pointed out how important it is to specify when a professor’s tenure actually ends: is it at the start of a phased-retirement contract, some point in the middle, or the end? “The choice can make a difference,” says Franke.
Universities should review their existing policies, she wrote, to make sure they do not unintentionally provide incentives to postpone retirement. Colleges also should clearly communicate with faculty about their pension benefits; the tax implications of their post-retirement pay packages; post-retirement medical, long-term care, dental and life insurance benefits; Medicare coverage; and campus amenities, including their potential to be rehired for part-time teaching.
“Retirement incentives provide an opportunity for creative problem solving,” Franke says. “Devote the time and resources to design and implement them legally and effectively.”