The Employer's Legal Resource: Sticks and Stones May Break Your Bones, but Words Can Send Your Case to the Jury


Since the Supreme Court changed the standard under the Age Discrimination in Employment Act in 2008, employers have been feeling a bit more protected from age discrimination claims. A brief recap is in order. Prior to 2008, claims of age discrimination, like other forms of employment discrimination under federal laws, were judged by deciding whether the impermissible classification was a 'motivating factor' in the employer's decision. For example, was the person's age a motivating factor in the employer's decision to fire her? In 2008, the Supreme Court changed that to a "but for" standard for age discrimination only. The question became, 'but for" her age would the employer have fired her? It was much tougher for employees to prove this. But not impossible.

In 2010, a local property management company fired one of its property managers, Ms. Strength. She filed a claim of age discrimination with the Equal Employment Opportunity Commission. The EEOC ultimately sued the property management company on Ms. Strength's behalf. According to the facts in the Court's opinion, which may be disputed at trial, the company's CEO communicated to Ms. Strength that her position was being eliminated, when in fact that was not the case. The EEOC presented witnesses who testified that the CEO said he fired Ms. Strength because "she was older and he did not believe she had the ability to meet potential tenants and entertain existing tenants after work." Witnesses also testified that the CEO wanted someone younger and prettier and that he fired her because she was "old and ugly." The CEO denied making these statements.

At the conclusion of discovery in the case, the property management company asked the Court for summary judgment - asked the Court to find that the case should not be presented to a jury. The company relied in great part upon the "but for" standard. The Court did not agree. The Court wrote

a reasonable jury could find [the CEO's] statement that Strength was "old and ugly" to be two sides of the same coin - both being attributable to her age. Moreover, the statements directly demonstrate discriminatory motivation on the part of [the CEO] and a direct nexus between that motivation and [the CEO's] decision to terminate Strength's employment. A reasonable jury could certainly find that age was the but-for cause of [the company's] termination decision.

There are a few things to take away from this opinion. First and foremost, a reminder that words matter. The comments uttered by management, even to others outside the earshot of the employee, matter. Your management team must understand this. Even if your manager makes an offhand comment or a comment which is unrelated to the true reason for the employment decision, the nature of the comment can be used to call into question the motivation of that decision maker. Second, although employees are now required to prove that, but for their age, the adverse employment action would not have happened, it is not an insurmountable hurdle. This Court was clear to point out that "but for" does not equate to the sole causation.

While sending a case to the jury does not mean that the jury will find there was age discrimination, a trial is far different than a motion for summary judgment. However, for employers, a trial means, at a minimum, additional fees, expenses, and time expended. It also means risk. Most employers would rather spend their time preventing claims through training and consultation prior to or during discharge decisions.

By Kristen L. Brightmire,

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Justin B. Munn

Justin B. Munn

Justin represents clients throughout Oklahoma in family law, civil litigation, guardianships, adoptions, estate planning, trust and probate matters. 

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