Stray Remarks Can Be Used As Evidence Of Bias Under The Age Discrimination In Employment Act (ADEA)

Published June 4, 2007

 

The last thing you want is for a manager to make offensive comments about an employee's age (or other protected characteristic). This is the type of "smoking gun" evidence that leads employers to settle claims rather than face a jury trial. Fortunately, most managers have enough sense to refrain from making such comments. If you're lucky, any misguided statements by managers will be considered so-called "stray remarks" that are not sufficient to support a discrimination claim. However, remarks don't always fall neatly into either the stray or not-stray category. Comments that may seem like stray remarks to a manager may be seen as evidence of bias in court. A recent age discrimination claim was sent to trial after an appeals court knocked down the employer's "stray remark" argument.

ONCE EVERY MONTH OR TWO IS ENOUGH

An employee claimed that her supervisor made references to her age at least once a month or once every couple of months. For example, he allegedly:

• began sentences with "In your day and age";
• suggested that the employee related well to and "could understand the mentality of " the senior residents of the apartment complex she supervised;
• asked whether she was tired of working and commuting, or whether she would be better off retiring so she could "take time off to rest"; and
• assumed she "didn't want to work long hours any more and…would be happier doing something part-time."

When the company began a project to draw young professionals to the apartment complex, the supervisor made a point of hiring "younger, energetic…attractive employees." Around the same time, the supervisor promoted the employee. She received subsequent salary increases and bonuses and mostly positive performance appraisals, although the supervisor did address a few performance issues with her.

More than a year after the promotion, the supervisor told the employee — who was 63 years old at the time — that she was no longer needed because he had hired someone with substantial graphic computer background and experience with maintaining websites to take over her duties. The new employee was 25.

The fired worker sued the company under the Age Discrimination in Employment Act (ADEA) and state and local laws, claiming that she was fired "on account of her age and because she did not fit into the younger, fresher image" the company was striving to achieve.

EVIDENCE OF SUPERVISOR'S MOTIVATION

A district court dismissed the case, ruling that the supervisor's comments were stray remarks. The 2nd Circuit Court of Appeals (Connecticut, New York, Vermont) disagreed. In the context of all the evidence, the remarks were sufficient to support the claim that the supervisor was motivated by age discrimination in firing the employee. (Note: The appeals court has only sent the case to trial; it did not rule on whether the employee has actually made her case.)

Said the appeals court: The relevance of discrimination-related remarks does not depend on their offensiveness, but rather on their tendency to show that the decision-maker was motivated by assumptions or attitudes relating to a protected class. Inoffensive remarks may strongly suggest that discrimination motivated a particular employment action. Example: Asserting that the employee was well- suited to work with seniors was not offensive. However, it had a strong tendency in the circumstances to show that the supervisor believed that, because of the employee's age, she was not well-suited to deal with the younger clientele he was hoping to attract.

Also working against the company, the court noted, was that the remarks were made by the person who made the termination decision. Thus, a reasonable jury could construe the remarks as evidence that the supervisor believed a younger person would be better suited to attract a young clientele and that he replaced the 63-year-old for that reason. Biased remarks are more likely to be considered insignificant when they are made by someone who had no part in the adverse employment decision.

DOES EMPLOYEE PERFORMANCE TRUMP SUPERVISOR REMARKS?

The district court held that because the supervisor promoted the employee, gave her positive performance evaluations, and gave her raises (when the employee was already in her 60s), the supervisor was unlikely to have fired her because of her age. The appeals court ruled that these positive actions actually supported the employee's claim. Reason: The supervisor testified in court that he had let the employee go because of her performance, which, the appeals court said, was undermined by evidence that she was a well-regarded employee.

The appeals court indicated in a footnote that "it is undeniable that a person's faculties deteriorate with time" and that the "ADEA does not prohibit the making of adverse employment decisions based on an employee's loss of faculties through the process of aging." Key point: The ADEA requires employers to "treat each individual case on its own merits, rather than assume that at a certain age deterioration has occurred." (Tomassi v. Insignia Financial Group, Inc., et al., 2nd Cir., No. 05-6219, 2007)

Related Topic(s): Discrimination/ADEA - Age Discrimination In Employment Act