As attorneys and lawyers who practice in the Employment Law field know, older employees are rarely able to present direct evidence of age related discrimination. See Rothman v. Emory Univ., 123 F.3d 446, 451 (7th Cir. 1997). For those employees who do not, direct evidence of age discrimination is something that does not require one to draw any inferences in order to conclude that the adverse employment action was motivated, at least in part, by age related prejudice. Under this standard, only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age, will constitute direct evidence of discrimination.” As an example, an employer telling an employee that he or she was being terminated because “you’re simply too old” despite the employee’s superb employment record would constitute direct evidence. Of course, employers rarely provide older employees with such clear cut pieces of evidence, so age discrimination attorneys are often left to build cases on circumstantial evidence and whatever off-hand age-related comments their clients can remember, such as Joe from accounting referring to the plaintiff as “old top” during all of their interactions at the office. Of course, attorneys may try to paint any age-related comments as direct evidence in their pleadings, but the Eighth District Court of Appeals has recently handed down some guidance on what comments will be considered “direct” evidence of age discrimination and which ones will not.
As part of its syllabus law, the Eighth District Court of Appeals, in Southworth v. N. Trust Securities, Inc., 195 Ohio App.3d 357, 2011-Ohio-3467 syllabus (8th Dist. 2011), stated that “[d]irect evidence of intent to discriminate on the basis of age in terminating an employee does not include stray remarks in the workplace, statements by non-decision-makers, or statements by decision-makers unrelated to the decisional process itself.” As a preface, this sentence is important in that it sets out two important factors to consider when evaluating age related comments in the workplace, namely: (1) who said them; and (2) their correlation to the adverse employment action that you are alleging was performed with some discriminatory intent. The first consideration is straight forward enough. Specifically, the individual who made the age related comments must be a person with some supervisory authority over the employee; enough supervisory authority, in fact, to at least argue that the individual has some say in the decision to demote, pass over for promotion, or terminate the employee. The Court, in Southworth, however, focused on the second consideration in its analysis of the age-related comments alleged by the plaintiff.
In Southworth, the employee provided evidence that his direct supervisor, an individual who played a major role in the eventual decision to let the employee go in the company’s reduction in force, had told a co-worker not to direct new business to the plaintiff employee because he “was not going to be cutting edge or innovative or something of that nature, and was old school in his approach.” Id. @ ¶ 7. At first glance, this evidence appears direct enough. You have a direct supervisor directing employees not to assign new business to an employee who is a member of the protected class based upon many of the age-related stereotypes that our Age Discrimination laws are designed to protect against. The Court, however, decided not to endeavor into the merits of the comments themselves and, instead, decided to focus on their correlation to the adverse employment action that occurred. Ultimately, the Court held that the comments would not be considered direct evidence of age discrimination because the supervisor made the comments in early to mid 2007, and the decision to let the plaintiff go was not made until February 2009. Id. @ ¶ 10.
This recent decision from the Eighth District Court of Appeals makes it perfectly clear that it is critical to call the right attorney, the moment such comments are made. If you or anyone you know, is facing age discrimination, let the experienced lawyers at Spitz, The Employee’s Law Firm help.
If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.
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