Words have power. Nowhere is this truer than in the legal sphere, where just a few words from a supervisor or manager can later have major repercussions for an employer. A prime example  is the recent case of Wilson v. Cox, in which the remarks of a chief operating officer (COO) had a major impact on a subsequent lawsuit alleging a violation of the Age Discrimination in Employment Act (ADEA).

Making a statement

The plaintiff was a 71-year-old military retiree, who was employed as a security guard for the U.S. Armed Forces retirement home where he also resided.

At the time he was hired, however, the plaintiff was 69 and didn’t reside at the home. A year later, he took residence there — partly because he could continue his employment pursuant to the facility’s resident employee program. But, that same year, the home’s COO decided to end the resident employee program and, thereby, also terminate the plaintiff’s employment.

The COO met with residents regarding this decision. He said that they didn’t come to the home to work, but rather to retire. He also told an Equal Employment Opportunity Commission counselor that the older guards at the facility weren’t doing their jobs and would often be found asleep, which wasn’t safe for the government agency in light of 9/11.

The COO later testified that he decided to eliminate the pro- gram to save costs and assure a better trained workforce.

The plaintiff then filed a claim against the home and the COO. The district court granted summary judgment in the defendants’ favor, holding that they had a nondis- criminatory reason for the plaintiff’s termination: The position was eliminated for economic reasons. Also, the age-biased comments made couldn’t be taken as a dis- criminatory motive based on age, as they were really just criticisms of the plaintiff’s performance.

The plaintiff appealed, stating that the district court had erred in granting summary judgment before he had any opportunity to conduct discovery.

Reversing the decision

The U.S. Circuit Court for the District of Columbia reversed the district court’s decision and returned the case to the lower court for reconsideration.

The appellate court held that, if a plaintiff offers direct evidence of discriminatory intent, the plaintiff will generally be entitled to a trial. In this case, the plaintiff had presented two statements made by the offending party. If these two statements were proven to have been made, the court stated, a reasonable juror could conclude that a discriminatory intent motivated the decision to end the program and terminate the plaintiff’s employment.

The D.C. Circuit further found that the COO’s state- ments indicated the sort of “inaccurate and stigmatizing stereotypes that led Congress to enact the ADEA.” It  held that age discrimination is established when an older employee is fired because the employer believes that pro- ductivity will decline with old age, and the statements tended to reinforce that stereotype — showing a discrimi- natory  intent.

In addition, the court found that, because the COO’s statements were direct evidence of discrimination enti- tling plaintiff to trial, it didn’t need to review the district court’s decision that the defendants had offered nondis- criminatory reasons for plaintiff’s termination. This mat- ter would be dealt with at trial. The D.C. Circuit also stated that the defendants could present their arguments defending their motives for canceling the program and terminating plaintiff at trial.

Training and reminding

In this case, the statements made by the COO led to a reversal of summary judgment. Every employer is subject to this risk. Make sure your managers and super- visors are well trained and reminded to avoid making comments that could be construed as evidence of bias based on age, as well as race, gender, sexual orientation and religion.