In our last entry we discussed at length the concept of “stray remarks” in ADEA cases in the context of a recent federal appeals court argument in New York. Recall that in that case, Fried v. LVI Services, the employee was fired, and produced evidence that his supervisor told him that “You’re 71-years of age. How do you expect to work? … What if you get hit by a bus?”

The trial court found this to be merely a “stray remark,” and therefore granted summary judgment to the employer.

The EEOC said that it was troubled by the fact that some trial courts, such as this one, ignore or disregard these so-called “stray remarks” as direct evidence of age discrimination. The EEOC argued to the appeals court that these comments should be weighed by the ultimate factfinder in the totality of the circumstances of the case, which should preclude summary judgment.

The appeals court just ruled against the employee, whose position was supported by the EEOC. While the Court stated that these remarks “bear some weight in demonstrating discriminatory bias,” they were not enough to permit a reasonable jury to find age bias “when considered against the overwhelming documentary evidence” of the employer’s stated non-discriminatory reason for firing the employee.

Our take away is the same as we noted earlier: even though courts, such as this one, are showing an increasing willingness to ignore what employers usually contend are merely casual or joking or isolated remarks about an employee’s age, it is still good practice to avoid such remarks at all times, and to avoid code words which may be understood as ageist. And note that this appeals court did not totally disregard these remarks, holding that they “bear some weight in demonstrating discriminatory bias,” which might be a signal that they may be willing to chip away at the “stray remarks” doctrine in the future.