The employment lawyers have dominated the comments to our recent post about a court’s holding that the use of the term “shelf life” was not ageist in the context of the facts of that case.

4717376_sHanan M. Isaacs, an employment attorney in Kingston, NJ, said: “Would a reasonable person EVER use “shelf life” — referencing a human being and not a grocery item– to mean “work queue” rather than “old fart”?  Give us a break, 10th Circuit!

Those words were exchanged between two HR managers engaged in decisions about imminent staffing layoffs and cutbacks.  Would an HR manager, rather than an ivory tower Circuit Judge, have any doubt about the true and relevant meaning of those words?  And if s/he would, then isn’t that why God invented jurors?

Where is “strict construction” when its use might actually benefit an aggrieved plaintiff/former employee?  Scratching my head over this one.”

Geoffrey Mort, a New York employment attorney:  “Much in these age discrimination code word cases does depend on the context of the phrase used, though it’s a little hard to see how “shelf life” — which has a fairly obvious and widely understood meaning — could refer to how much work an employee has in his in box. Without reading the decision and understanding all of the facts, one wonders if this isn’t yet another instance of a court deciding to find for an employer and then devising a justification for that determination.”

William Deveney, an Atlanta-area employment attorney:   “Context is extremely important, of course, but I think these code word cases tend to turn on the strength of the employer’s evidence regarding its legitimate, nondiscriminatory reason. The stronger the evidence in support of that reason, the more direct the alleged code word evidence must be to rebut it.

In this case, the employer’s economic reasons for discharging the plaintiff (i.e., poor performance) appears to have been quite strong based on the Court’s discussion. The reference to “shelf life”, in the context of this case, therefore could have been simply that the plaintiff no longer had any value as a salesperson.”