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One wrong word can launch a lawsuit: Warn bosses about the danger of ageist comments

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in Discrimination and Harassment,Employment Law,Hiring,Human Resources,Leaders & Managers,Management Training,Performance Reviews

Following past recessions, hiring typically took place across the age spectrum once recovery began. Not this time. The Great Recession and its hiring hangover have hit older workers particularly hard.

That’s sure to mean more lawsuits. Employment lawyers smell blood and will soon be going after employers they perceive as having policies biased against hiring older workers. Don’t let your organization end up as a target.

Now is a good time to have a serious talk with everyone involved in the recruiting process. Explain that comments reflecting a preference for younger workers are inappropriate and can lead to litigation and jury awards.

Recent case: Kathy Jones was 56 years old when she applied for a promotion at the university where she was an admissions representative. She was initially one of three top candidates for the director of admissions position. The selection committee included Richard Buckles, the university president.

The committee first offered the job to a 38-year-old, who rejected it. The second candidate likewise passed. Jones wound up the committee’s third choice. But rather than promote Jones, the university set out to add to the candidate pool.

Meanwhile, Jones was tapped to serve on the selection committee vetting candidates for another position. Buckles was also a member of that committee. While the two were discussing a fiftyish candidate, Buckles told Jones, “I’m not sure we want a grandpa working with our high school students.”

Later, the university selected a 34-year-old for the position Jones wanted. At the time, Buckles tried to explain the choice to Jones. Buckles said that, while Jones would have been the better choice for the short term, he believed the other candidate who got the job “was a better choice for the long term.”

Buckles didn’t explain the statements, but Jones took them to mean that the younger candidate would stick around longer. She filed an EEOC lawsuit.

A jury agreed with Jones, finding the university liable for age discrimination. The judge hearing the case doubled the damages award, reasoning that the evidence showed willful discrimination.

The university appealed, arguing that it had legitimate reasons to choose the younger candidate—reasons unrelated to Jones’ age. It argued that Jones lacked the required management skills.

That argument backfired when the appeals court pointed out that the university had told the EEOC during its initial investigation that it didn’t choose Jones because of poor performance. Because it had presented conflicting reasons, the court said Jones could introduce the ageist statements to show those reasons were just pretext for the real reason—age discrimination. It upheld the doubled jury award. (Jones v. National American University, No. 09-3007, 8th Cir., 2010)

Final note: In this case, just one ill-advised statement made during an unrelated hiring process spurred an age discrimination lawsuit. Remind supervisors and managers that referring to anyone as “grandpa,” “pops,” or “granny” is just plain stupid. The same is true for comments about retirement and any other remarks that could be taken as a preference for younger employees.

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