You know not to call an employee “old” or “ancient.” That is clearly direct evidence of age discrimination.
But how about calling an employee “old school? Or “set in his ways?” Or “not a proper fit for the "new environment?” Or “lacking in energy?” Then you’ll be fine, right? No age lawsuit against you!
Wrong. These have been held to be code words used in cases of age discrimination. Or in modern political parlance — “dog-whistle” expressions.
Wikipedia defines a “code word” as a word or a phrase designed to convey a predetermined meaning to a receptive audience, while remaining inconspicuous to the uninitiated. An “informal code word” is a term used without formal or prior agreement to communicate to a subset of listeners or readers predisposed to see its double meaning.
Wikipedia says that “dog-whistle politics,” is also known as the use of code words. “It is a type of political campaigning or speechmaking which employs coded language that appears to mean one thing to the general population but has a different or more specific meaning for a targeted subgroup of the audience. The term is invariably pejorative, and is used to refer both to messages with an intentional subtext, and those where the existence or intent of a secondary meaning is disputed. The term is an analogy to dog whistles, which are built in such a way that the high-frequency whistle is heard by dogs, but appears silent to human hearing.”
Stay away from the use of such code words, or words that you think won’t be understood as proxies for “old.”
Many courts have held that the use of “code words” may be direct evidence of age discrimination. Way back in 1988, the Court in Karlen v. City Colleges, stated that the term “new blood” is “an expression that we suspect will soon disappear from the employer’s lexicon as awareness of the menace of age discrimination litigation seeps through the employer community.”
The Court was wrong. More than 20 years later code words such as these are still popular with employers. See the case of Hawkins v. Frank Gillman Pontiac.
The Las Vegas Sun just reported that a Las Vegas sales executive was awarded a whopping $1.868 million in an age discrimination case where the direct evidence consisted of words such as "old school," and the suggestion that he was not a proper fit for the "new environment." The employee alleged that he perceived these comments as being discriminatory because of his age, which was 55 at the relevant time. (Note: There were also other claims and other evidence).
Question for employers: What other words or expressions can you think of that are coded for “age” or “old?” Use them and you may see yourself in the newspaper!