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Words matter—and can come back to haunt employers sued for age discrimination

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in Best-Practices Leadership,Discrimination and Harassment,Human Resources,Leaders & Managers,Management Training

In difficult economic times like these, employers try everything they can to wring greater productivity and profits from employees and work processes. It’s not easy. There’s often resistance from employees who have grown accustomed to doing things the same way they always have.

And some of the most intransigent of those employees may be your older workers—and that means potential for legal trouble.

Consider, for example, what may happen if the top brass planning the company’s next moves start to use terms like “young” and “energetic” to describe the team that will spearhead the change effort.

Older employees may view that as code for age discrimination. If they sue, a jury might see it that way, too.

Recent case: Experienced executive Dean Inman was vice president of technology at international plastics giant Klöckner Pentaplast and a member of the company’s steering committee. Inman’s career was on an upward trajectory. He owned a substantial amount of stock in the company, purchased at a discount stipulated as part of his compensation plan.

Then a new boss arrived on the scene, with the job of preparing Klöckner Pentaplast for possible purchase by another company. The new manager started complaining that Inman didn’t meet his expectations for leadership—although he had no complaints about his technical skills.

Then Inman, age 58, was fired—and replaced by a 45-year-old. He lost not only his job, but also a considerable amount of wealth in the form of Klöckner Pentaplast shares he had been forced to relinquish when he was terminated.

He sued for age discrimination.

Meanwhile, Klöckner Pentaplast was eventually sold for $1.8 billion. Because the value of company shares had risen dramatically after he was fired, Inman also sued for the current value of the stock he had given up.

Inman’s lawsuit alleged there had been a conscious plan to get rid of older employees. During discovery, other employees testified that during planning sessions, terms such as “young” and “energetic” were used to describe the desired management team. These words were even scribbled on a cocktail napkin during one planning meeting. The napkin also included the phrase “future people.”

Inman claimed that the choice of adjectives to describe ideal employees was nothing less than code for choosing younger employees at the expense of older ones.

The district court dismissed the lawsuit, concluding that the comments on age were simply stray remarks.

But the 4th Circuit Court of Appeals disagreed. It said a jury should decide whether the managers were literally seeking younger employees and therefore terminated Inman because of his age. (Inman v. Pentaplast, No. 08-1882, 4th Cir., 2009)

Final notes: In this case, some of the words that caused so much trouble were spoken by a Klöckner Pentaplast executive from Germany. The court didn’t buy his argument that lack of familiarity with the United States led him to use the terms that led to the litigation.

Lesson: If any of your top executives are from other cultures, it’s HR’s job to clue them in on inappropriate language that could lead to lawsuits. It is a sensitive but important task.

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