Most managers know that employees who are over forty are protected by the federal Age Discrimination in Employment Act and by similar state and local laws. Age discrimination cases can be difficult, because we all get older. No one is immune from aging, and it is typically a visible protected group.
Age-related remarks can be used as evidence of age discrimination, just as racist or sexist remarks can prove race or sex discrimination. But what, exactly, is an age-related remark? Our “favorite firing” case today shows that even a reference to “Superman” might be found to be age-related.
The Facts: A 76-year-old security guard, Carlyn Johnson, was fired by Securitas Security Services USA, Inc. (“Securitas”) after he was involved in a car accident while on-duty and allegedly left his post early. Mr. Johnson filed an age discrimination claim, and said that prior to his termination his supervisors had made negative comments about his age. One of the comments that he says a supervisor said to him was that he “needed to hang up his Superman cape.” The same supervisor who made this remark also said that Mr. Johnson was “too old to be working.”
The district court granted summary judgment in favor of Securitas, concluding that Johnson did not present a prima facie case of age discrimination. On August 26, 2013, the Eighth Circuit Court of Appeals reversed, saying that the remarks alleged were enough to state a claim for age discrimination, and that Mr. Johnson should be able to take his case to trial. See Johnson v. Securitas Security Services USA Inc., No. 12-2129 (8th Cir. Aug. 26, 2013).
There was other evidence of age discrimination, such as that younger employees were not fired after they were in accidents and that those involved in Mr. Johnson’s termination knew his age.
Also mentioned in the Eighth Circuit’s opinion were some variations in the employer’s version of why Mr. Johnson was fired.
The Moral: It is important for employers to train all employees, and especially managers, to avoid making comments that might be found to be ageist, racist, sexist, homophobic, or otherwise hurtful to some protected segment of the workforce. Employers are typically responsible for the stupid comments that managers make.
In Vance v. Ball State University, (U.S. June 24, 2013), the Supreme Court limited the definition of “supervisor” to those who have authority to make “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” The Vance decision is helpful to employers, because it limits who is a supervisor under federal law. However, in Johnson, the Eighth Circuit found that the supervisor who had told the plaintiff to “hang up his Superman cape” was sufficiently involved in the decision to fire Mr. Johnson to raise a question of fact precluding summary judgment.
Even stray comments can become critical in a judge or jury’s reaction to a particular fact pattern. Non-discriminatory terminations can be twisted into illegal discrimination if the judge or jury decides that the employer’s decision-makers acted out of discriminatory animus. A few comments may be enough.
Despite the age-based remarks, this case is not a slam-dunk for the plaintiff if the case is tried. After all, he was hired when he was 70 years old. Moreover, the employer did not replace him with a younger employee, as often happens (in fact, no one was hired to replace him). Even the allegedly ageist comments could be found to be stray remarks unrelated to his termination, as the District Court determined in ruling on the summary judgment motion.
The employer may still win at trial, but the employer will not get off easily on summary judgment, due in large part to the comments by Mr. Johnson’s managers.
When has a silly remark created a problem in your workplace?
Sara Rickover, Behind the Corporate Veil 