There Are "Too Many Old, Fat, Ugly And Gray-Haired Employees!"

Just when I was through harping about health care facilities being the target of EEOC suits under the Americans With Disabilities Act, along come a couple of new EEOC lawsuits about my next favorite topic to write about: ageist epithets or what I have called “code words” as evidence of age discrimination.

Granny, Grandmother, Senior, Woman, Old

I tells ya there ain’t no shortage of content for this blog!

Perhaps some employers think that they can escape being caught discriminating against older people if they code their language.   Or maybe they are just used to making ageist comments because they have, as the EEOC has said, “outdated prejudices and biases.”  Either way, these comments may be seen as code words, or perhaps in political parlance — “dog-whistle” expressions, which are designed to “convey a predetermined meaning to a receptive audience, while remaining inconspicuous to the uninitiated.”  See Wikipedia.  And they may make you liable for age discrimination!

For example, you do not call an employee “old” or “ancient,” since that is direct evidence of age discrimination.

You stay away from calling an employee “old school,” or “set in his ways,” or “not a proper fit for the “new environment,” or “lacking in energy.”  And, of yes, “Hang up your Superman cape and “get it together you f….ing old peopleshould also be avoided (although the latter remark can hardly be considered particularly “coded”).

The Hawaii Reporter once reported that a home care services company was ordered by a federal court to pay $193,236 to a fired 54 year old employee because the owner allegedly told the employee’s manager that the employee “looks old,” “sounds old on the telephone,” and is like a bag of bones.

Yeah, stay away from these too!

The EEOC just sued a Colorado hotel and casino which had conducted a major new hiring campaign but “failed to hire female and/or older applicants in a variety of different positions,” with many comments being made that it had to rid itself of the “gray hairs,” and that there were “too many old, fat, ugly and gray-haired employees.”

An EEOC attorney stated that older female workers “continue to face discrimination based on incorrect assumptions about their skills and capabilities. As an agency, we are committed to the elimination of age and sex discrimination in the workplace.”

Person, Man, Male, Portrait, Kippa

In the second new case, the EEOC sued a restaurant franchise in Pennsylvania under the ADEA  alleged that one applicant for a vacant position (aged 54), after being asked her age, was told that she was “too old,” and another applicant for an open position (aged 58), was told after being asked his age that the restaurant was not hiring.   Moreover, the general manager told a vocational counselor who had referred applicants not to refer older applicants because “They don’t work hard for me.  They get tired easily.”

The EEOC Regional Attorney said that “EEOC stands ready to ensure that older workers are not deprived of the right to earn a living due to outdated prejudices and biases.”

Takeaway:   Learn from these real life cases of ageist comments and stay away from their use, or any words or comments that may be understood as being proxies for “old.”  And examine yourself: do you possess prejudices and biases when hiring, firing or otherwise dealing with older workers?

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]