By now it is well known to our readers that you do not call an employee “old” or “ancient,” since that is clearly direct evidence of age discrimination. Moreover, you know not to use code words, such as calling an employee “old school,” or “set in his ways,” or “not a proper fit for the "new environment,” or “lacking in energy.”
We previously challenged readers to come up other words or expressions that are coded for “age” or “old,” and were surprised to see so quickly a new ADEA suit in which the younger job applicant was hired instead of the more qualified older applicant because the employer stated that she was “at the right moment of her life for commitment to a full-time position.”
That was one coded comment that we had not seen before.
Perhaps in response to our challenge, we have been made aware of an employer who used some novel code words (and words not so coded) in firing an employee, and thereby called down the EEOC’s wrath. The EEOC announced (and the Hawaii Reporter has published) that Hawaii Professional HomeCare Services, Inc. has been ordered by a federal court to pay $193,236 to a fired employee because the owner allegedly fired the 54-year old employee after telling her manager that the employee “looks old,” “sounds old on the telephone,” and is “like a bag of bones.”
“Like a bag of bones?” Another new one for our list!
The EEOC reported that besides the damage award, the court is requiring the defendants (who defaulted) to develop and disseminate procedures to address age claims and train employees on their rights with respect to age discrimination and retaliation, as well as training for supervisors on how to deal with such complaints. Defendants must also retain an outside EEO coordinator to assist with these efforts and post a notice for employees regarding the court judgment. Finally, and what is anathema to most employers, the EEOC will monitor the employer’s compliance with the judgment’s provisions.
An EEOC attorney summed up the EEOC’s position succinctly: “What makes this case especially appalling is the flagrant disregard for a worker’s abilities, coupled with disparaging ageist remarks and thinking. The EEOC will not tolerate such violations of civil rights law and is pleased by the court’s decision.”
And we said it before and will say it again: Stay away from the use of such code words, or words that you think may be understood as proxies for “old.”