Dive Brief:

• An HR professional allegedly discharged just weeks before his retirement fund fully vested will get a second shot at his age and gender discrimination claims, the 6th U.S. Circuit Court of Appeals decided (Stokes v. Detroit Public Schools, No. 19-1773 (6th Cir. March 31, 2020)).
• Gregory Stokes worked for Detroit Public Schools. When his contract for an acting role was about to expire, he applied for a talent acquisition position. The employer did not select him for the position, however, choosing a 28-year-old woman instead. Stokes sued and a district court granted summary judgment for the employer.
• On appeal, the 6th Circuit said that despite some deficiencies in his interview, Stokes provided enough evidence for a reasonable juror to find that the other applicant was pre-selected for the job. He presented emails to that effect, and pre-selection "operates to discredit the employer's proffered explanation for its employment decision," the court said, revering the lower court's judgment and remanding Stokes' gender and age claims.

Dive Insight:

The Age Discrimination in Employment Act (ADEA) prohibits discrimination against employees 40 and older because of age.

In addition to the pre-selection evidence, the plaintiff in Stokes alleged the other applicant was described as more "enthusiastic" and "energetic" than him. Although the appeals court noted that the statements weren't enough to create a genuine issue of material fact of pretext for age discrimination in that case, remarks by supervisors and managers can land employers in court. Earlier this year, the 9th Circuit found that the "many remarks" allegedly made by company executives about a worker's age were enough to revive an employee's discrimination suit. The court said the evidence presented "went beyond mere stray remarks." On the other hand, the 2nd Circuit found that an employee called "old-timer" on two occasions by the CEO outside of the office did not suffer age discrimination.

The U.S. Equal Employment Opportunity Commission, which enforces the ADEA, has said that while age-related harassment can include offensive or derogatory comments about a person's age, "simple teasing" or "offhand comments" generally are not enough for a finding of discrimination.

Because managers and front-line supervisors are the most common cause of discrimination claims, experts suggest they receive regular compliance training on applicable federal, state and local laws and on how to prevent bias, harassment and retaliation claims. HR can reinforce the training by putting into place policies that support inclusion and diversity.

Experts also recommend that when crafting ads for job vacancies, words like "young" or ads seeking a "recent college grad" or a "digital native" be avoided because the language can appear to exclude older job candidates.