An older employee has come to the end of the road – his case, that is. The Supreme Court has declined to hear his appeal that the expression “shelf life” as used by the employer was direct evidence of age discrimination.
Readers know that we like to collect cases where code words purporting to disguise age discrimination are used. “Hang up your Superman cape” was one of our favorites, while “get it together you f….ing old people” was one of the least “coded.” The columnist Joyce Lain Kennedy used the phrase “language workaround” for what we have called code for direct evidence of age discrimination.
Now we can apparently scratch “shelf life” from our list – at least for now.
We wrote a post last year about this case where a federal appeals court threw out the claims of a fired employee who contended that an HR manager asked another on an “instant message” about the employee’s “shelf life.” The appeals court described the employee’s argument: “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.”
Takeaway: We have kept a running list for some time of “language workaround” or code words, and have advised employers to avoid them at all costs to avoid liability. You should still not use “shelf life.” On September 17, 2013 we wrote: “Age cases would not be age cases if not for the vast number of creative ways employers refer to employees as ‘old.’ Seems like there is no limit to how employers – and society – refer disparagingly to older people.”