“A Lean And Agile Workforce Wanted!” (Older Folks Need Not Apply)

I’m always interested to see how different words, terms and expressions are used by employers to communicate that “old people need not apply.”  You know – anyone over [fill in the blank].

This is illegal ageism, pure and simple – but the language used can be subtle (sometimes, but not every time, as a brick!).

I just read about a new term which was used in the workplace to stand in for “younger” – “lean and agile.”

Ahh, the creativity when it comes to age discrimination!

Apparently, a new class action lawsuit has been filed which alleges that a company “claimed to be ‘surplusing’ workers based on their geographic location but was actually assigning workers to areas that would be shuttered based on their age in a discriminatory effort belied by the company’s stated goals of becoming ‘leaner, faster and more agile.'”

The suit claims that “workforce reduction … was part of its long-term scheme and pattern or practice to replace older employees with younger ones. It was designed to, and did, discriminatorily remove older employees from [the] workforce, and then intentionally deceive them into falsely believing that, in exchange for a severance benefit, they had released their right to sue the company for age discrimination.”

The named class plaintiff alleges that:

the corporate culture sought to “’transform’ its workforce by phasing out older generations of workers in favor of their successors in Generation X and Generation Y. She pointed to public statements that allegedly used ‘lean’ and ‘agile’ as a proxy for “younger,” and age-based ‘resource groups’ within the company aimed at supporting ‘young professionals’ and directing employees older than 50 to support and mentor younger employees.”

Ok, so let’s add “lean” and “agile” to our pantheon of ageist code words.

Old readers (forgive me — long-time readers) may recall my earlier posts in which I asked if 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  Or maybe they are just used to making ageist comments because they have, as the EEOC has said, “outdated prejudices and biases.”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 “dog-whistle” expressions, designed to communicate a certain meaning to a “knowing” audience and at the same appear neutral to the unknowing.

For example, you know not to call an employee “old” or “ancient” (although I had a case years ago 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.” (Yes, these are all from real cases!).

And terms like “Hang up your Superman Cape,” and “get it together you f…. old people” should also be avoided.  The same with “looks old,” “sounds old on the telephone,” and is “like a bag of bones.”

But I guess “lean and agile” would appear less ageist – at least to those not suing in this latest case.

Do I look like a hairbag?

Perhaps the most extraordinary use of a proxy term for age was reported in the New York Times.  Only a few months ago, a lawsuit was filed by a “decorated detective … who had the plum assignment of guarding Mayor Bill de Blasio. He claims he was forced out of the mayor’s security detail and nudged into retirement this year at age 56 because his commanders regarded him as a relic.”

He alleged that “his supervisor called him a ‘hairbag’ behind his back, which [he] says is evidence that older officers are viewed with suspicion and disdain.”

He said that a “hairbag is an older cop, a burned-out cop, who doesn’t want to do anything and doesn’t care anymore. … It was disgusting. Do I look like a hairbag?”

According to the Times, “hairbag” is “an archaic bit of slang with obscure origins. In police parlance, ‘the bag’ means ‘the uniform.’ So some officers believe ‘hairbag’ is a riff on a longtime officer’s uniform — so old it has become hairy — and describes veterans who know what the police call ‘The Job’ inside out.”

Anyway, if you don’t discriminate against someone because of their age – which is illegal, after all – then you’re likely to think twice before using proxy terms for “old.”

At least I hope so.

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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]