“Isolated comments about age that are unrelated to a contested employment action do not show discriminatory animus,” the court stated. However, the judge thought differently here. So what were the words that stepped over the line? Appearently, the senior manager told his store manager, an employee of seven years, that the company wanted a “younger more aggressive manager” in his job. (The kicker was the manager was only 42!)

You know the drill. Eventually the 42 year old was fired for poor performance. Foot Locker argued that it did not fire the store manager because of his age. Smells stinky, doesn’t it?

Yup, the court smelled it, too. While Foot Locker hired a new store manager who was 23 years old, it argued that he really was not a replacement because the new guy did not do everything the previous store manager did. But, the court declared that defense was not a proper fit. The judge decided the “replaced by a younger person” requirement was “not to be rigidly applied.”

Lessons Learned ... Without Going to Court

• Protect age in all your EEO policies. The EEOC has a relatively new initiative called, “The Task Force on Systemic Discrimination.” It is looking for discrimination in all employment practices including hiring, promotion, performance management, performance documentation and termination. Chaiman Naomi Earp has stated, “Employers all across the country should expect aggressive investigations and litigation by the Commission.” Believe her.
  
  
• Remember the new “It-Only-Takes-One” rule. Bite your tongue. Don’t say it. You are on notice now that it only takes one comment about a protected characteristic, like age, to get sued.
  
  
• Focus on the job description for performance. It is all about whether someone is doing the job or not doing the job according to the expectations listed in the job description. That’s it. It is not about their age, so don’t make it about that. If you link the two concepts, you will end up in court.
  
  
• Avoid all comments about age. While federal laws protect employees at age 40, states reserve the right to protect employees at any age. For example, some states protect employees from age discrimination at age 18 and others protect employees from birth on. A good company policy will protect all employees from harassment and discrimination based on their age, no matter how many candles were on the last cake.
  
  
• Avoid all comments about protected characteristics. Don’t forget that best practices apply not only to age but to all protected characteristics, like race, religion, disabilites, national origin and any other protected characteristics under federal, state and local laws. Stay away from all comments about these areas.
  
  
• Share your organization’s strategic plans. If your company wants to increase the competancies of their management, like increase aggressive sales skills, then share that vision. That is probably shat should have happened here. It is quite different than a manager thinking (and telling everyone) the corporate vision is replacing the old with the new.
  
  
• Train managers. Untrained managers and supervisors are walking time bombs for liability. They need to be trained on how to manage within the law from hiring through termination to heighten their awareness about what they can and cannot do and say.