- Despite age-related "stray remarks" from executives, two former employees of Adloox, Inc., were fired for poor job performance, not age discrimination, the 2nd U.S. Circuit Court of Appeals concluded (Downey, Bonner v. Adloox, Inc., No. 18-3521 (2nd Cir., Oct. 24, 2019)).
- Upholding a district court's summary judgment for the employer, the appeals court said the workers, who were in their 50s, were chosen for jobs over younger candidates and later fired for failing to meet performance goals. The appeals court said that while the employer offered "contemporary evidence" — including performance metrics — that it fired the plaintiffs for non-discriminatory reasons, the workers primarily offered "stray remarks unrelated to their dismissals" to make their case.
- One of the plaintiffs said he was called "old timer" on two occasions by the CEO. But, the court observed, both instances happened outside the office and the plaintiff acknowledged that the man was joking and that business was not being discussed. The same plaintiff also presented an email in which CFO wrote that the company was looking for "young sharks" to become junior salespeople. The comment was unrelated to either of the plaintiffs' firing because it was about "hiring, new, junior salespeople," the court observed, and the plaintiffs had not offered any evidence to link "these stray comments to their firings," it said.
When employers prevail in discrimination cases, it's often because they can show that the adverse employment action in question was based on poor performance with thorough documentation. Experts have said that managers should be trained to document everything, and they warn that it reflects poorly on an employer when a performance problem is documented after a complaint has been made.
While the court in this instance disregarded the allegedly age-discriminatory statements by corporate executives, in many instances, insensitive comments are enough to move a case past the summary judgment stage and to a jury. A 58-year-old employee whose 52-year-old supervisor allegedly made multiple negative comments about her age was recently allowed to proceed with her age bias claim. While the EEOC has said that "petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality," some courts view harassment by a supervisor in a harsher light.
Experts have said that managers and front-line supervisors are a leading cause of bias claims and that they should be trained on compliance with applicable federal, state and local laws. With buy-in from management, HR can craft policies that aim to curb bias and harassment and that support diversity.