It’s the last acceptable discrimination.

Two years ago I posted that the forever young Dick Van Dyke, who was then 90 (OMG!), talked about age discrimination, what he called “The last acceptable discrimination.”  He noted that he was told by a salesperson at a Tommy Hilfiger store that “I don’t think you’ll find anything you like here,” and by another salesperson elsewhere that “I don’t think you could afford that.”

He commented that “It’s sad because elderly people used to be respected for their experience and wisdom but they get sidelined and it’s too bad.”

Sad indeed. And it continues.

Victoria Lipnic, the acting EEOC chairperson, was quoted recently as saying that “Age discrimination is an open secret like sexual harassment was until recently. Everybody knows it’s happening.”

Look around you. Everybody in the company is young.

Two relevant cases were in the news recently that bear discussion.   In one, an Anthropologie retail worker in her fifties claims that her 34-year old supervisor told her that she was “too old” for a promotion to an apparel supervisor, and to “Look around you. Everybody in the company is young.”

Her attorney told the NY federal appeals court recently that “This is the next #MeToo Movement.”

Googleyness = 29?

The same ageism issue was raised by a California engineer who was allegedly turned down four times for a job with Google beginning when she was 47.  She claims that Google places “an emphasis on ‘Googleyness’ and cultural fit, thereby reinforcing its youthful demographic. The median age of Google employees at the time was 29. Does ‘Googleyness’ mean being 29?”

Old fuddy-duddy

In an earlier case against Google, an employee in his early fifties claimed that he was told that “his opinions were obsolete,” that he was “too old to matter,” “slow,” “sluggish,” and that he did not display a “sense of urgency.” Other employees referred to him as “old man” or “old fuddy-duddy” and told him that his knowledge was “ancient.”

A similar lawsuit filed against IBM alleges that it laid off more than 20,000 employees over 40, and that “internal company documents referred to workers in the ‘Baby Boomer’ generation as ‘gray hairs’ and ‘old heads,’ and stated that ‘successor generations . . . are generally much more innovative and receptive to technology than baby boomers.”’

Many coded words  and phrases for “old

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.’”


If there is a new #MeToo movement, it has come none too soon!

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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]