Stray Remarks Or Evidence Of Age Discrimination?

While it is never okay for employers to make disparaging comments about an employee’s age (or any other personal characteristic, for that matter), not all age-related remarks are fodder for an age discrimination lawsuit.

A supervisor referred to a 50-something employee as the “old man” of the operation. Ten months later, the employee’s job was eliminated in a reorganization. Shortly after, the company hired an individual nine years his junior to fill a newly created position. The employee contended that the “so-called reorganization” was actually an attempt to get rid of him because of his age, and his supervisor’s remark proved it.

Although the age difference created an inference of age discrimination, the court found that the differences in the two positions were so significant that it could not conclude that the new employee had been hired to replace the older worker. It also ruled that a single remark in a context unrelated to the employee’s termination is not sufficient evidence to support an age discrimination claim.

Said the court: “t would be unfortunate if the courts forced the adoption of an employment culture that required everyone in the structure to be careful so that every remark made every day passes the employment equivalent of being politically correct lest it be used later against the employer in litigation.” (Hyland v. American International Group, 3rd Cir., No. 08-4203, 2010)

The Discrimination Difference

The court’s ruling is reasonable. Everyone misspeaks from time to time; employers shouldn’t have to worry that each mistake will lead to legal liability. When evaluating whether a comment is considered stray (and legal) or evidence supporting an inference of age discrimination, courts will look at whether:

1. a decision-maker, or someone in a position to influence the decision-maker, made the comment;
   
   
2. there is a nexus between the comment and the adverse employment action;
   
   
3. the remark reflects an animus toward older workers or suggests that the decision-maker acted on age-based assumptions or stereotypes (i.e., the content);
   
   
4. there is other evidence of age-based hostility or discrimination (i.e., the context).

There is no bright-line rule to determine when comments will be considered stray and when they will be considered evidence of discrimination. Comments are assessed on a case-by-case basis within the totality of the circumstances.

Discrimination Prevention Practices

The 3rd Circuit wrote in this case that, whether or not a supervisor makes reference to an employee’s age, it is likely that the supervisor has some concept of it. The same goes for more obvious characteristics, such as gender and race. You can’t expect managers to ignore those traits, but you can educate them on the importance of refraining from acting on them, expressing an animus toward them, or making explicit reference to them. Strictly and uniformly enforce policies that prohibit employees from making inappropriate comments relating to protected characteristics.

If an inappropriate comment is made in the context of an adverse employment decision, shore up your legal defenses by:

• taking appropriate action against the supervisor who made the comment, such as issuing a written warning or conducting an anti-discrimination refresher course;
  
  
• removing the supervisor from the decision-making process; and
  
  
• encouraging decision-makers to use information from a variety of sources in making the decision and not just rely on the comment-making supervisor.