We Cannot Hire You Because We Have To Maximize Longevity

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It’s been awhile since I’ve seen a new code word or phrase for age discrimination.  A newly-filed EEOC suit gives me the opportunity to recap my collection of such words and phrases.

The EEOC just sued a Florida restaurant under the Age Discrimination In Employment Act (“ADEA”), alleging that it told a qualified applicant for a  general manager position that it refused to hire him because it was seeking a candidate who could “maximize longevity.”

“Maximize longevity” — a new one for my collection.

What Is Coded Language In Discrimination Cases?

A federal appeals court said in a race discrimination employment case that “As we have recognized, ‘clever men may easily conceal their motivations.’”  This is quite true in age cases — even if the language used to conceal age animus is anything but clever.

Some time ago I summarized a few years’ worth of age cases and the coded language used, which bears repeating here to remind us what fairly blatant coded language is:

“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   Or maybe they are just used to making ageist comments because they have, as the EEOC has said, ‘outdated prejudices and biases.’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.’

“For example, you do not call an employee ‘old’ or ‘ancient’ (I once had a case where the boss referred to another employee of the same age as the one he fired as “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…. old people’ should also be avoided (although the latter remark can hardly be considered particularly well “coded”).”   The same with ‘looks old,’ ‘sounds old on the telephone,’ and is ‘like a bag of bones.’”

Takeaway:  Anyone who has a case or has seen a case where such coded language is used, please let me know!

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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]