Discrimination at work is perfectly legal in some countries, and foreign-born managers and executives who work for U.S. employers may sometimes say things that show ignorance of U.S. laws.
Those words can come back to haunt an employer that is sued for age discrimination. They can be used to show bias against older employees. And they can send a slam-dunk case to an unpredictable jury—with equally unpredictable results.
Recent case: Kevin Thompson was approaching age 50 when he was selected to head a Dutch company’s U.S. subsidiary. Thompson was the company’s second choice, picked when its first—and younger—choice turned down the job.
Thompson did not have a solid background in running a company and began having problems right away. His Dutch supervisors complained that he overestimated sales by hundreds of thousands of dollars and couldn’t produce a proper budget.
Meanwhile, Thompson began cataloging what he considered examples of ageism by his supervisors. First, he remembered that during his interview, he was specifically asked his age. He also noticed that someone had written “80” and “50?” on his résumé. He believed the notations referred to the fact that he had graduated from college in 1980 and would soon be 50 years old.
Thompson then had several conversations with his Dutch boss, who allegedly told him to hire an “angry young man” as the comptroller and to hire a younger staff so Thompson could position himself as “the elder leader.”
Thompson protested that age discrimination was illegal in the United States, but his boss said that the conversation was taking place on the other side of the Atlantic, so it was perfectly legal to discuss age.
Then, on Thompson’s 50th birthday, his boss presented him with an “Abraham cake,” which is apparently a tradition in Holland and, according to the Dutch supervisor, signifies that the recipient is “wise.” (Abraham was the biblical figure who was the founding patriarch of the Tribes of Israel.) Thompson recalled, however, that he was told the cake symbolized the wisdom an older man has acquired before being “put out to pasture.”
That same day, the company’s Dutch CEO told Thompson he was being terminated because the original first-choice applicant had agreed to take over running the company.
Thompson sued, alleging age discrimination. The company tried to argue that it had ample evidence that Thompson simply wasn’t up to the role and that was the real reason he was terminated.
The court, however, ordered a jury trial. It said there appeared to be evidence of age discrimination and that a jury should sort out whether performance or age was the real reason for the loss of Thompson’s job. (Thompson v. Buhrs America, No. 07-2746, DC MN, 2009)
Final note: This case could have been avoided if Dutch executives had been educated in U.S. discrimination laws. They would have realized that even mentioning age in a negative way can lead to a lawsuit.
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