Age discrimination has explicitly been on the top of the EEOC’s agenda for almost a year, what with an aging workforce and a growing number of age charges filed. Two recent cases are instructive as to the nature of direct evidence of age discrimination and the ways that some employers think that they are gaming the system by using code words, and discouraging older applicants from pursuing positions.

We have said many times that referring to an employee as “lacking energy” or “not being up to date” may be as damning as simply coming out and calling someone old.  In these two cases both happened.  

First, the EEOC just announced that it settled an age case with the town of Elkton, Maryland for $235,000 and other relief. The lawsuit alleged that the town fired a 70-year old assistant town administrator/finance director because of his age, with the direct evidence adduced that one town commissioner said that the employee was "in his 60s" and "no young chick," suggesting that he be replaced with a "young person out of college" (which was done).   “No young chick” is  synonymous with “old,” and the town commissioner’s other comments simply and patently underscored that that was exactly what he meant.  

Second, the EEOC recently sued Texas Roadhouse restaurant in Massachusetts alleging a nationwide pattern or practice of age discrimination in hiring. The EEOC alleged that the restaurant refused to hire older workers for visible “front of the house” positions, such as servers, hosts, and bartenders.

The evidence put forward was not quite as direct as in the first case, but it was close enough to be damning nevertheless (if proved).  It consists of the restaurant’s emphasis on youth when training managers about hiring employees, with all of the images of employees in its training and employment manuals being of young people. Nationwide, the restaurant told older applicants:

-- “there are younger people here who can grow with the company;”  

-- “you seem older to be applying for this job;”  

-- “do you think you would fit in?;”  

-- that it was “a younger set environment;”  

-- “we are looking for people on the younger side... but you have a lot of experience;” and  

-- “how do you feel about working with younger people?”  

Pick either of these two cases to study and learn to stay away from using such language or any like it, even if you are “just kidding around.” More importantly, adopt a zero-tolerance anti-discrimination policy, and do not consider age when hiring or firing because (1) you may be losing out on a great employee, and (2) you may be sued.