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Mind your mouth: Ageist criticism more likely than ever to spur a lawsuit

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in Discrimination and Harassment,Human Resources

Since the U.S. Supreme Court’s 2009 Gross v. FBL Financial Services decision, employees suing for age discrimination have had to prove that “but for” the employee’s age, the employer wouldn’t have taken the adverse action it did.

Before, employees just had to prove that age was one motivating factor, not the sole factor.

Gross generally benefited employers, but it also raised the stakes. Now, managers’ ageist statements can really have an impact. Employees have begun citing such statements to prove that age was the real, discriminatory reason for a demotion, termination or other act.

Recent case: Michael Sharp was a used-car sales manager at Penske Buick GMC near Reading. His boss didn’t think Sharp was energetic enough, and told other employees Sharp was slow. The boss repeatedly told others he wanted to replace Sharp, who was 62 years old, with “somebody younger” who had a higher energy level.

The dealership eventually fired Sharp, citing poor economic conditions and generally slow sales.

Sharp sued, alleging that the real reason he had lost his job was because his boss thought he was too old. Someone considerably younger had replaced Sharp.

The court said, based on the boss’s ageist statements, Sharp had enough evidence that age was the real motivating factor behind his discharge. (Sharp v. Penske Buick, No. 09-1110, ED PA, 2010)

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