8 Helpful Hints On What Not To Call An Older Employee

It's not good, not fair, and not legal. So why are there so many cases of thinly disguised ageism?

So, I’m a collector. Not of baseball cards (anymore), or stamps (anymore), or dried beetles (never). Perhaps alone in a club of one, but I collect particular court cases and filings.

Yep, discrimination and harassment cases that involve health care professionals or facilities running afoul of the disability discrimination laws, cases that involve the N-word, or nooses or KKK hoods in the workplace. Oh, and cases in which older employees are called or referred to by ageist epithets in the workplace. It keeps me very busy.

No, it’s not a hobby or a Saturday afternoon substitute for a day at the beach.   It’s a serious pursuit that seemingly has no end in sight.

And it keeps me busy. Very busy.

For example, I posted here at ATL about health care providers sued for disability discrimination, and the EEOC’s comment about why this is cottage industry — it’s so easy to point out hypocrisy: “One would hope that a health care organization would be the employer least likely to fire someone because she was recovering from serious surgery. Such conduct is not only cruel and insensitive, it’s illegal, and the EEOC is here to combat it.”

I call it “shooting fish in a barrel,” or “picking low-hanging fruit.”

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So, getting back to older employees in the workplace. What do some people call them and how do some people refer to them? Answer: not very flattering things overall — and often things that show direct evidence of age discrimination under the relevant federal, state, and municipal statutes.  Call them “harmful stereotypes.”

Not good, not fair, and … not legal. So why are there so many cases of thinly disguised ageism?

A federal appeals court said not long ago (in a race discrimination case): “As we have recognized, ‘clever men may easily conceal their motivations.’” This may be the reason why I’ve seen so many “clever” variations of “old” (some not clever at all — but quite obvious) used to describe older workers; or maybe it’s just downright ageism.

Or maybe it simply reflects the fear that we all have … of getting old.

Many courts have held that the use of “code words” may be direct evidence of age discrimination. Some 30 years ago, one court stated that the term “new blood” is “an expression that we suspect will soon disappear from the employer’s lexicon as awareness of the menace of age discrimination litigation seeps through the employer community.”

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The court was wrong.

In any event, here are some tips on what not to say to avoid being called out (maybe by the EEOC) for being ageist, culled from my vast collection of actual cases (citations provided where I still have them).

Tip # 1: “Age will matter.” Well, one settlement shows that some employers are not even clever enough to conceal their motivations. How so? A New Jersey staffing firm agreed to pay $50,000 to settle a case. It was alleged that after learning of a job applicant’s date of birth, it emailed him that he was no longer being considered because he was “born in 1945” and “age will matter.”

Talk about making your ageist intent clear!

Similarly, in the EEOC sued a college which, in a search for candidates for an assistant professorship in dance composition rejected a 64-year-old applicant and hired a 37-year-old applicant. It was alleged that the search committee considered the 37-year-old to be “at the right moment of her life for commitment to a full-time position.”

Nope, not good.

Tip # 2: In recent days, versions of the following comments have been popping up in Silicon Valley and other places.

In 2012, an employee alleged that a new manager repeatedly referred to him as “old school,” inappropriately commented on his “tenure” with the company and suggested he was not a proper fit for the “new environment.” He was 55. He alleged that when he complained, the employer did not conduct a proper and thorough investigation and that, further, he was subjected to retaliation and intentional inflection of emotional distress.

A jury awarded him lost pay of $168,000 and for mental or emotional pain and suffering … a whopping $1.7 million!

Good idea to stay away from things like this.

Tip # 3: Do not call an older employee “ancient.” It’s just not nice, and it forced one employer to settle a lawsuit. In a case of mine some time ago, the company CEO testified at his deposition about an employee who he referred to as “ancient.” Problem for him was that this employee was the same age as plaintiff! Ooof. Quiet a “slip.”

Tip # 4: Don’t, I repeat, don’t refer to an older employee as “looks old,” “sounds old on the telephone,” and is “like a bag of bones.” All three comments were allegedly made by a single business owner in Hawaii who ordered an employee fired.

Wow — three tips in one — a trifecta!

The employer was sued by the EEOC and ordered to pay $193,236! Good show!

Tip # 5: “Having no runaway” is not a good thing to say to anyone — and led to a lawsuit when the boss said that to a 60+ year old employee.

Tip # 6: “Lacking in energy.” Needs no explanation as a synonym for “old.”

Tip # 7: Having a “senior moment?”

Nah, better stay away from things like this, even if seniors say this about themselves sometimes.

Tip # 8:  This one is my favorite. “Hang up your Superman cape and retire.”

This was said to a 70-year-old security guard whose manager referred to him as “Superman” because of his dependability — until the time came when he became concerned about the guard’s ability to work long hours and multiple consecutive shifts. He told the guard that he was “too old” to be working and it was “time to hang up [your] Superman cape and retire.” The guard was terminated.

The court dismissed the case because, among other things, it held that the evidence of these comments was not sufficient to raise genuine questions of material fact, but the dissenting judge said that a factfinder could reasonably conclude that the manager sought to terminate the guard based upon age because the manager repeatedly made “disparaging, age-related comments.”

In any event, as with all of the above, the best advice is — just don’t say it.


richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.