This will be a short post about another case where an employee claimed that age discrimination was demonstrated by the use of some code words. We like to collect such cases, and this one is creative. “Hang up your Superman cape” was one of our favorites, while “get it togehter you f….ing old people” was one of the least “coded.”
In this case, the employee was fired and claims one HR manager asked another on an “instant message” about the employee’s “shelf life.” As the appeals court said, “it is this question, [the employee], that shows age played a direct role in his eventual discharge. After all, shelf life depends on an item’s freshness, at least in the supermarket.”
The Court did not buy this argument, however: “Any fair reading of the conversation, though, reveals that the ‘shelf life’ here had nothing to do with [the employee’s] age and everything to do with his workload. … Immediately before the mention of [the employees] shelf life,’ and again immediately afterward, the HR managers’ attention was focused on the quantity of billable work [the employee] faced.”
The Court concluded that “Once its euphemisms and acronyms are translated into English, the instant message conversation unmistakably suggests that ‘shelf life’ was nothing worse than an inartful reference to [the employee’s] queue of billable work. And that is more than enough to preclude it from amounting to direct evidence of discrimination in violation of the federal Age Discrimination in Employment Act, as [the employee] supposes.”
Is “Project Blue” A Reference To The Blue Hair Rinse Used By Older People?
The employee, to demonstrate that age played a part in his firing, then raised another alleged code phrase which was used by the employer: the name of the project by which the employer planned to trim the workforce was named “Project Blue.” How, you may ask, is the name “Project Blue” a reference to age? Well, said the employee, “the name was an allusion to blue rinses sometimes used by older people or to the resulting hair styles they sport.”
Once again, the Court rejected this argument: “Standing alone, though, the HR department’s bare mention of the color blue (accompanied by not a hint of hair) cannot reasonably be taken as a reference to anyone’s age.”
All in all, the Court held that there was no direct or circumstantial evidence of age discrimination.