Age discrimination claims are rarely built on “smoking gun” evidence. At the same time, bias against older workers is readily apparent in American society. According to an article by Fortune entitled, Tech industry job ads: Older workers need not apply, Facebook’s Chief Executive Officer, Mark Zuckerberg, commented: “Young people are just smarter.” The same article quotes billionaire venture capitalist and Sun Microsystems co-founder, Vinod Khosla, as declaring: “People over 45 basically die in terms of new ideas.”
Such blatant slips of the tongue, however, are uncommon pieces of evidence in age discrimination cases. As the Seventh Circuit in Riordan v. Kempiners acknowledged, employers know better: “Defendants of even minimal sophistication will neither admit discriminatory animus nor leave a paper trail demonstrating it.” And as many courts have recognized, a decisionmaker may resort to euphemisms in order to conceal discriminatory motive. In McElhinney v. Quest Diagnostics, for instance, the Eastern District Court of Pennsylvania noted that “people often use code words when making discriminatory remarks.”
As discussed here, employers often argue that code words are inadmissible because, by their very design, such statements are ambiguous. Numerous courts, however, have rejected this argument, Notably, in Futrell v. J.I. Case, the Seventh Circuit made clear that a manager’s statement that the plaintiff was not a “forward enough thinker” could “certainly imply that … [he] might have harbored unfavorable views of older workers” despite its double meaning. Likewise, in Bienkowski v. American Airlines, the Fifth Circuit reversed summary judgment in an age discrimination case where the supervisors, among other statements, commented on the plaintiff’s alleged “inability or willingness to ‘adapt’ to new systems in the department.” In doing so, the court stated that “we are unwilling to assume that indirect comments about his age and adaptability are not possibly probative of an unlawful discriminatory intent” and noted that “live testimony will assist the necessary credibility choices in this case more effectively than printed affidavits.”
Other examples include the ruling in Tyler v. Union Oil Company of California, where the Fifth Circuit held that statements that the company would be a “lean, quick-reacting organization … not be constrained by an old Unocal way” constitute admissible evidence in proving age discrimination. Certainly, code words are admissible with respect to other workplace discrimination claims as well, including race discrimination cases. In Aman v. Cort Furniture Rental, for instance, the Third Circuit largely reversed summary judgment where there was evidence that black employees were referred to as “another one,” “one of them,” and “poor people.” Notably, the court deemed these statements “inherently racist remarks.”
In 2014, for the first time in 31 years, an American won the Boston Marathon. Two weeks before his 39th birthday, Meb Keflezighi ended the American drought. A three time Olympian, Meb made a decisive move shortly after the halfway point to break away from the pack and never looked back. The runner-up, who’s personal best in the marathon going into the race was more than three minutes faster than Keflezighi’s, is 10 years younger. The results also reveal that the top ten finishers had an average age of approximately 29 years old. Meb beat them all, en route to running his fastest marathon ever on one of the world’s most difficult courses at an age where many believed his best days were behind him. His victory challenged stereotypes, and caused athletes of his own ilk to question the limits they had artificially placed on themselves.
Beyond physical ability, it is also unfair and inaccurate to broadly assume that intellectual capacity declines with age. The average age for Nobel Prize-winning scientists – an honor that emphasizes innovation and outside of the box thinking – is currently 59 years old. And contrary to the inverse correlation that some in Silicon Valley perceive between youth and intelligence, twenty-somethings do not possess an inherent knack for launching unicorn, billion-dollar tech start-ups. The research, in fact, shows the opposite is true. A study that evaluated thirty-nine, unicorn-level start-ups revealed that founders of these companies were, on average, 34 years old. Notably, the founders of Workday – which was the third most valuable company overall – had an average of 52 years old. As such, Mark Zuckerbergs are the outliers and not the norm when it comes to such ventures.
Despite anecdotes and research to the contrary, age bias continues to rear its head in American workplaces. At the same time, and as many courts have acknowledged, some employers can be adept at concealing discriminatory motive. Code words and legal challenges to their admissibility are methods that employers use to obscure age discrimination, which must be challenged and placed in the proper light in order to get the case to a jury and ultimately prevail.
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