- An alleged ageist comment made by a supervisor in the presence of a company's HR director wasn't enough to support an employee's age bias claim, the 5th U.S. Circuit Court of Appeals ruled (Williams v. Waste Management, Inc., No. 19-10532 (5th Cir., June 15, 2020)).
- Andre Williams Sr. worked for Waste Management, Inc. During discussions regarding a scheduling accommodation for an impairment, his supervisor allegedly asked on multiple occasions — once in front of an HR director — whether Williams was too old to do his job. Williams was then fired after Waste Management said he failed to report to work three times.
- Williams sued, alleging he hadn't actually missed work as Waste Management said and that his termination was based on his age and other protected characteristics. A federal district court granted summary judgment for the employer and, on appeal, the 5th Circuit upheld the ruling. HR was the ultimate decision maker and, "[c]ontrary to Williams' assertion, the [HR rep] merely having been present when [the supervisor] is alleged to have made the remark, without more, would not allow a reasonable jury to determine whether [the supervisor] had the requisite influence or leverage over the decision to terminate Williams," the court said.
The court noted that to prevail on an Age Discrimination in Employment Act (ADEA), a plaintiff must prove that age was the "but-for" cause of the challenged employer decision. That legal standard comes from a 2009 U.S. Supreme Court ruling, Gross v. FBL Financial Services, Inc., and is being reconsidered by Capitol Hill lawmakers. The U.S. House of Representatives voted earlier this year earlier this year to change the standard to one that proponents say would make it easier to prove age bias in the workplace.
Although the employer prevailed in Williams, remarks, especially from managers, can provide evidence of discrimination. The 6th Circuit, for example, allowed a 58-year-old employee whose 52-year-old supervisor allegedly made multiple negative comments about her age to proceed with her age bias claim.
On the other hand, what courts deem "stray remarks" generally aren't enough to sustain a bias case. For example, the 2nd Circuit concluded that despite such age-related remarks from executives, two former employees of Adloox Inc. were fired for poor job performance, not age discrimination.
Generally, however, when employers prevail in discrimination cases, it's because they can show a legitimate, non-discriminatory reason for the challenged adverse employment action through documentation. Experts have said that managers should be trained to document everything, and document it well. Managers and supervisors also can be trained on compliance with applicable local, state and federal laws forbidding discrimination and retaliation. In addition, HR pros can conduct anti-bias training to prevent stereotyping and offensive comments, as well as adopt policies to address such remarks if they occur.