We have made it a point to accumulate and publish age discrimination cases where code words for “old” were alleged to have been made.
On July 19th we wrote that ““We have harangued our readers for a long time [we said on December 11, 2012 ] not to call an employee “old” or “ancient,” which is clear direct evidence of age discrimination, and 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,” or “not being up to date,” or “sounds old on the telephone,” or “is like a bag of bones. Some employers think that they are gaming the system by using these code words, and discouraging older applicants from pursuing positions. It usually backfires.”
We also referred our readers to an article written by James F. Ehrenberg of Barnes & Thornburg which mentioned a California age discrimination case where a 76-year-old engineer defeated summary judgment because “The director of the engineer’s department allegedly told the engineer that he had been selected for the lay off because the director ‘had to consider the future of the company’ and because the engineer had been with the company for ‘a long time.’ These statements, the engineer argued, were veiled references to his age.”
We can finally conclude a post with a case where an alleged coded reference to an employee was found NOT to be direct evidence of age discrimination! Yes, it’s true. It isn’t a great case, to be sure, but the employer still defeated an employee’s claim that the boss saying that he needed “fresh leadership” was not in and of itself direct evidence of age discrimination. (The boss denied that his use of this term meant “young” or “younger”).