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Words That Might Sound Like Age Discrimination

In recent years, there has been a significant increase in the number of age discrimination claims. In fact, according to the Equal Employment Opportunity Commission (EEOC), age discrimination charges rose by approximately 15 percent in fiscal year 2007. Many observers attribute that trend to the fact that more employees are choosing to work longer and the impact of corporate downsizing on older workers. Regardless of the reason, employers need to be aware of the types of conduct that can put you at risk for an age discrimination lawsuit.

In many age discrimination cases, employees attempt to show a discriminatory motive by citing the employer’s statements about the need for “new blood” or an “energetic” and “dynamic” workforce — phrases they contend are code words for age discrimination. The EEOC recently relied on that type of circumstantial evidence in an age discrimination lawsuit filed on behalf of five employees who were terminated by TIN, Inc., a manufacturer of specialty packaging products.

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No severance ‘package’ here
TIN operates box manufacturing plants in several locations across the United States and Mexico, including Phoenix. After the Phoenix plant failed to make a profit for several years, the company eliminated or consolidated several jobs in an effort to reduce its fixed costs. The EEOC filed an age discrimination suit on behalf of five former employees who were terminated as part of the restructuring. At the time they were let go, the employees were 62, 60, 58, 56, and 49.

A federal judge in Arizona recently tossed the EEOC’s lawsuit. The court ruled that the agency couldn’t meet its burden of demonstrating sufficient evidence of age bias — either direct or circumstantial — to allow the lawsuit to go forward to a jury.

It’s important to note that to get a jury trial on an age discrimination claim, an employee must introduce sufficient evidence for a reasonable juror to conclude that age played a role in the employer’s decisionmaking process and had a determinative influence on the outcome. If the employee introduces direct evidence of discrimination, it doesn’t need to be substantial to get to a jury. But if he proceeds with only circumstantial evidence, he must present “specific and substantial evidence” of a discriminatory motive to avoid dismissal of his claim.

The judge in the TIN case explained that direct evidence in an age discrimination lawsuit includes conduct or statements by people involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude. The evidence must be sufficient to imply that such an attitude was more likely than not a motivating factor in the employer’s decision.

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We need some young blood
The EEOC alleged as purported “direct evidence” of discrimination that the regional vice president of TIN’s International Group (which included the Phoenix plant) made comments that connected age with energy, health, vitality, and creativity and expressed concerns about employees who “retired on the job” and lacked “that young thinking sort of mentality.” The EEOC offered evidence that the vice president referred to some employees as “old,” “old school,” old-fashioned, and “old guard” and stated that “older people should move on and learn new tricks.” In particular, he talked about a sales manager getting old, retiring on the job, lacking energy, being overweight, and drinking. In contrast, he spoke approvingly of employees whom he considered to be “young blood” and indicated that the business was a “young man’s game” and needed “young, fresh, and energetic people.”

As further evidence of age-related bias, the EEOC alleged that the vice president told an applicant for a sales manager position, “Basically what we need to decide is when we’re looking at someone older like yourself is that you obviously have the experience, but compared to a young guy, would you be willing to go out into that hot Phoenix sun, climb the stairs and make the sales calls with your sales rep? A young guy would be hungry and maybe have more energy.” Sounds like a lot of evidence of age bias, right? The court wasn’t persuaded that it rose to the level of “direct evidence” of age discrimination, however.

The court conceded that on its surface, the evidence showed that the vice president was concerned that older employees wouldn’t perform as well as younger workers in jobs requiring physical endurance and energy, might not be willing to adopt new strategies, and might prefer a job that permits them to collect a paycheck without continuing to work as hard as before, (i.e., retire on the job). However, the court believed that the evidence didn’t establish that he assumed those characteristics applied to all older workers. For example, the court noted that he didn’t veto the hiring of a 61-year-old employee. In addition, the court also appeared to have been influenced by the fact that none of his statements were made in connection with the terminations at issue in the lawsuit.

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Are you sure there was no age bias?
But although the vice president’s statements weren’t found to be direct evidence of age discrimination, could they be “circumstantial” evidence of age bias? Once again, the court concluded that his remarks were insufficient to support the EEOC’s age discrimination claims.

According to the court, questioning whether an experienced sales manager is willing and able to climb stairs in the Phoenix summer heat, wondering whether a sales manager in his 70s is actively pursuing new customers, and expressing concerns about an overweight sales manager spending too much time drinking, golfing, and possibly coasting into retirement while still on the payroll may be legitimate business concerns. In addition, the court noted that despite those concerns, the company still hired older workers.

In sum, the court found that the EEOC was unable to introduce sufficient direct or circumstantial evidence for a reasonable juror to find that the company acted with a discriminatory motive in terminating the five employees.

State by state comparision of 50 employment laws in 50 states, including age discrimination

Think outside the box
While TIN successfully defeated the EEOC’s age discrimination lawsuit (of course, we expect the agency to appeal the court’s ruling), this case serves as an important reminder about the potential dangers of discussing the workforce in terms that can be construed as evidence of a bias against older employees. We certainly don’t recommend taking the court’s decision to mean that you can get away with the types of statements the vice president made. Instead, it should serve as a warning to remedy the situation if you have a supervisor who’s guilty of the same type of talk.

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