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Ban comments about age, national origin, but don’t sweat isolated incidents

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in Discrimination and Harassment,Human Resources

Here’s some good news. One single isolated comment about an employee’s advancing age or his country of origin isn’t enough to sustain a lawsuit claiming age discrimination.

Recent case: Gary frequently received warnings about his poor performance. When he was terminated, he sued, alleging he had been the victim of age and national origin discrimination.

As proof, he claimed that he had once been called an “old dog,” and another time had been referred to as the “crazy Canadian.”

The court tossed out the case, concluding a single arguably offensive comment wasn’t enough to support a lawsuit. That was especially true where, as in this case, the employee had received disciplinary warnings about poor work and couldn’t show that others with similar work problems outside his protected classes were treated more favorably. Plus, there wasn’t a long history of name-calling. (McClain v. County of Clark, No. 12-16888, 9th Cir., 2014)

Final note: Yes, the employer won in the end, but only after paying legal fees to defend itself.

Of course, any name-calling at work should be discouraged. It makes for an unpleasant work environment and can escalate without much warning.

Don’t forget that you will soon need to include bullying as part of your harassment supervisor training program. Repeated name-calling can certainly be considered bullying. Sensitizing supervisors and managers to bullying and name-calling should prevent many lawsuits like this one.

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