Tuesday, April 10, 2007

Stray Remarks and Effects on Court Decisions

On another employment law blog, I discovered an interesting post about stray remarks (http://employment.lawfirmnewjersey.com/archives/age-discrimination-age-discrimination-stray-remarks.html). This story a good reminder that: "professionals should not be lulled into a false sense of security by the stray remarks...". As the professor mentioned in class, courts are usually negative in using stray remarks to find age discrimination.

In this particular case, a supervisor made comments to an older worker such as "In your day and age" and "take time off to rest". Ultimately, the employee was fired and replaced by a significantly younger worker.

Do you think the stray remarks were and should have been enough to show discrimination? Was the supervisor simply making light conversation and being courteous...or was he discriminatory based on age?

The blog post also has a link to the case itself...


Blogger mel said...

Well, in answer to one of your questions, I think that the employer was definitely not being courteous. But I don't necessarily think that he was being discriminatory based on age either. The impression that I got when I read the blog was that this woman was a hard worker but maybe just didn't do the best work. As a result, the employer wanted to get rid of her and used her age as an indirect means of trying to persuade her to leave. But as I mentioned in class, it is too hard to know what the true meaning of the employer's comments were because we were not present and thus, missed a large majority of what was "said."

5:20 PM  
Blogger Ryan E Gralia said...

I agree with Mel. We cannot say if it was discrimination or not. However, if I was in charge of the supervisor who made the stray remarks, I would fire him. I would not sit idle while any of my employees were making ill-intended remarks about any individual.

11:28 AM  
Blogger Professor Prenkert said...

Note that in that case the remarks in question were not the only evidence that could potentially lead to an inference of age discrimination. The fact that the supervisor lied about the justification for hiring the younger worker can be suggestive of a cover up for an illegitimate reason. The drastic age difference also, especially in light of the lie and the age-based comments, might be suggestive of a preference for younger workers.

The other important thing about this case, as the blog post argues, is that an employer's remarks need not be offensive nor do they need to show animus toward older workers to be indicative of discrimination. The important issue is whether the remarks are sufficient to allow an inference (when considered along with all of the other evidence, like the lie and the drastic age difference) that age played a role in the decision -- even if the role age played was an ill-conceived notion of benevolence toward an older worker (i.e., you need to work part-time and rest).

Remember the Johnson Controls case, in which Johnson Controls refused to allow pregnant or otherwise fertile women to work with the lead batteries. This wasn't because Johnson controls thought pregnant/fertile women were less able or because they had some other kind of irrational animus toward the workers. It was ostensibly for their "protection" and the protection of their unborn children. Nevertheless, even this kind of (rightly or wrongly) well-meaning use of a protected status as a basis for an employment decision is prohibited (unless there is some applicable defense).

11:55 AM  

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