Employer Rejects Older Applicant: “Age Will Matter”

It’s been almost a year since I’ve written about – or even seen – a new code word or phrase for age discrimination.

The last time involved the EEOC which had 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.”

I noted that a federal appeals court said in a race discrimination 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.  I wrote:

“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.’”

“Age will matter

Well, a new settlement shows that some employers are not even clever enough to conceal their motivations.

The EEOC just announced that a Princeton IT staffing firm will settle a case for $50,000 in which it was alleged that “after learning an applicant’s date of birth, the company sent the applicant an email stating that he would no longer be considered for the position because he was ‘born in 1945’ and ‘age will matter.’”

“Age will matter.” Did an employer really write that to a job applicant?

The EEOC press release noted that the defendant was a staffing company, and we may assume that by its wording the term “age will matter” could have meant that age will matter to the agency’s client. This is of no moment to the liability of the staffing agency, of course, since as the EEOC commented, “The ADEA prohibits employment discrimination on the basis of age, including discrimination in referrals by employment agencies.”


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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]