Dive Brief:

• The "many remarks" allegedly made by company executives about a worker’s age were enough to revive an employee's age discrimination suit, the 9th U.S. Circuit Court of Appeals has concluded (Kocienski v. NRT Technologies, Inc., No. 18-15524 (9th Cir. Dec. 11, 2019)).
• John Kocienski ​filed suit alleging he was fired based on his age. According to court documents, there were many remarks allegedly made by company executives about his age and Kocienski's direct supervisor testified that the company's president said he wanted Kocienski fired because he was "just too old."
• A district court granted summary judgment for the employer but on appeal, the 9th Circuit reversed. Noting that a "reasonable trier of fact could conclude that discrimination had occurred," the court said the evidence presented "went beyond mere stray remarks." Moreover, the employer provided no reason for Kocienski's termination at the time he was fired and also allegedly strayed from its progressive discipline policy in firing him.

Dive Insight:

The Age Discrimination in Employment Act (ADEA) prohibits harassment and discrimination on the basis of age against applicants and employees age 40 or older.

The U.S. Equal Employment Opportunity Commission has said that, while age-related harassment can include offensive or derogatory comments about a person’s age, this does not include "simple teasing" or "offhand comments" — the "stray remarks" to which the Kocienski court was referring. For example, the 2nd Circuit recently found that an employee called "old-timer" on two occasions by the CEO outside of the office did not suffer age discrimination.

On the other hand, a woman who was allegedly called a "little old lady" by her manager, along with multiple other offensive comments, was allowed to proceed with her lawsuit. A 58-year-old employee whose 52-year-old supervisor allegedly made multiple negative comments about her age was recently allowed to proceed with her age bias claim, too.

Because managers and front-line supervisors are a leading cause of bias claims, experts suggest they be provided with regular training applicable federal, state and local laws and how to prevent bias, harassment, discrimination and retaliation claims. HR also can help by developing and implementing policies that support diversity and inclusion.

Kocienski also illustrates the importance of even policy enforcement. Although there are exceptions, as the commission has noted in a guidance, uneven discipline can serve as evidence of discrimination, so HR must ensure that policies are applied and enforced consistently, without regard to protected characteristics.