- Vague comments can't establish an age discrimination claim, the 4th U.S. Circuit Court of Appeals has ruled (Norman v. Call-A-Nurse, LLC, No. 19-1010 (4th Cir. Nov. 8, 2019)).
- Alleging she was fired because of her age, an executive director pointed to others' comments such as "this isn't the way we do this anymore" and "times have changed; now things no longer work that way."
- A district court granted summary judgment for the employer and the 4th Circuit affirmed. "[W]e conclude that these statements were similar to the type of vague remarks about generational change that we have found are insufficient to establish an age discrimination claim," the appeals court said.
The Age Discrimination in Employment Act (ADEA) prohibits harassment and discrimination on the basis of age against applicants and employees age 40 or older.
According to the U.S. Equal Employment Opportunity Commission (EEOC), age-related harassment can include "offensive or derogatory remarks about a person's age." Such comments also can support a discrimination claim. This does not include "simple teasing" or "offhand comments," however.
Whether comments constitute mere teasing or actionable harassment is a fact-specific inquiry. An employee who said he was called "old-timer" outside the workplace, for example, was not able to show age bias. However, a woman who was allegedly called a "little old lady" by her manager, along with multiple other offensive comments, was allowed to proceed with her lawsuit.
Regardless of whether comments about about age, race, gender, or other protected characteristics are meant in fun or indicative of something more sinister, they can lead to hurt feelings and lawsuits. For this reason, experts say it's important to provide regular training on bias, harassment, and retaliation. Additionally, adverse employment actions such as discipline or discharge should always be backed up by documentation. Lowe's recently defeated a worker's allegations of age and disability bias because it was able to show legitimate business reasons for the employee's transfer to a new store and investigations into his conduct.