Intergenerational “Humor” Has Its Risks in Age Discrimination

Issue: Following a bitter proxy battle, X Corporation is taken over by Jim Smith, a 30-year-old entrepreneur who made $500 million by developing violent video games.

On his first day as CEO, Jim calls into his office all persons over the age of 50, all of whom have been superb workers, and says: “My old dad told me I was nuts wasting my time playing with computer games. Hah! I really don’t believe people that old have any sense. You will have a tough time proving to me that you can fit in with my 21^st century philosophy. Time to get some new blood into this stodgy business!”

For the next few months, Smith constantly made disparaging remarks about the ability of older workers to do the job. At one meeting, he presented the 55-year-old supervisor of the loading dock with a cane and a walker, called another older executive “Methuselah,” and suggested an afternoon nap time for all of the “old codgers.” In addition, the younger employees and supervisors, egged on by Smith, regularly taunted the older workers with ageist remarks. At the end of four months, all the workers over the age of 50 had quit. Was the Age Discrimination in Employment Act (ADEA) violated?

Answer: Obviously. The work environment at X Corporation made it very difficult for older workers to perform their duties with skill and dignity. The constant harassment by Smith and the younger employees and supervisors resulted in the constructive discharge of every employee over the age of 50. A constructive discharge is when an employee quits in order to escape illegal and intolerable employment practices or conditions.

As an HR professional, you know that the ADEA protects individuals who are 40 years of age or older from discriminatory conduct based on their age. While courts have held that isolated remarks by supervisors might not rise to the level of discrimination, any employer who permits or encourages—even in jest—conduct similar to that related above is actively seeking a lawsuit. More importantly, however, employers who do not implement procedures to prevent harassment because of age or correct any harassment that occurs are also at risk of being found in violation of the ADEA.

Source: This egregious example is taken from “Age Discrimination,” part of the United States Equal Employment Opportunity Commission Technical Assistance Program. May 1999 (Revised).

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The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.