Jeffery Akers was a patent examiner at the U.S. Patent and Trademark Office (PTO). He sought a promotion but didn’t get it. Instead, a younger woman was given the position. Akers believed that his age and gender prevented him from getting the promotion, so he filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC).
The EEOC rejected Akers’ claim because he failed to establish that discrimination played a role in the decision not to promote him. Not satisfied, Akers appealed to the EEOC Office of Federal Operations, which upheld the commission’s determination. Having exhausted his administrative remedies, he then filed suit in the District of Columbia, claiming he was subjected to discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. The case was transferred to the federal court in Alexandria, but the federal judge dismissed Akers’ claims.
The judge found that Akers had established an initial case of discrimination because (1) based on his age and gender, he belonged to a protected class, (2) he was qualified for the position for which he applied, and (3) he was passed over for the position in favor of a younger woman.
However, the court concluded that the PTO had proffered legitimate, nondiscriminatory reasons for its selection. According to the PTO, its review panel rated Akers’ qualifications lower than the other applicants in the five factors relevant to the position. In fact, he not only ranked lower than the woman who was ultimately selected, but he also ranked lower than four other men who applied. Because he couldn’t show that the PTO’s reason for its promotion decision was a pretext for discrimination, he lost the case. Akers v. Gutierrez, 2008 U.S. Dist. LEXIS 58588 (E.D. Va., July 30, 2008).
To protect your company from discrimination claims, be prepared to cite legitimate and objective reasons for the employment decisions you make, and have documentation of the decisionmaking process. If you do, it will go a long way in convincing a judge to dismiss a discrimination lawsuit before trial.
Looking for “New Talent” Not Discriminatory
In another age discrimination case, a federal district judge in Charlottesville, Virginia threw out the lawsuit of a 55-year-old engineer and corporate officer who was replaced by a 45-year-old. The judge found that the engineer failed to present sufficient evidence to proceed with a claim of age discrimination based on general allegations about the company’s emphasis on “new talent,” “forward- and future- thinking employees,” and the request that he consider replacement planning for his employees in his department, including himself.
The company had hired a consultant to evaluate its leadership team and provide succession planning and leadership development. In that context, the company’s HR director interviewed the engineer and told him he needed to develop a plan for his successor because he “was getting up there in years.” Although the engineer claimed that the statement was direct evidence of age discrimination, the court concluded that it and other comments similar to it didn’t reflect discriminatory intent given the context in which they were made. Inman v. Klockner Pentaplast of America, Inc., 2008 U.S. Dist. LEXIS 60193 (W.D. Va., August 6, 2008).
In this case, the court ruled that statements alluding to an employee’s age won’t automatically be considered discriminatory but will be considered in the context in which they are made. However, ageist statements can give the impression that your company’s decisionmaking favors younger employees. Hence, when evaluating employees, take care to avoid the use of such terms as “new blood,” “deadwood,” or “gray-haired.” Remember, loose lips sink ships — and prompt lawsuits.