Quirky Question # 161:

I’m an HR Director. Several of our executives use language that is ambiguous when describing specific employees. I’m not sure whether their lingo reflects some biased attitude or whether they are genuinely concerned about the issues they raise.

Can you offer any guidance on this subject? Should I intervene?

Roy’s Analysis:

You haven’t given me too much to work with here, but I’ll take a stab at your questions, starting with your final inquiry. You asked whether you should intervene. In a word, “Yes.” That’s your job, isn’t it? You are the HR Director and you have questions about how the executives are referring to your company’s employees. You are concerned that your company’s executives refer to your firm’s employees in a way that could potentially create liability. So, what’s the downside to finding out more information? As you note, the language being used is “ambiguous.” It strikes me that you could ask some non-confrontational questions to ascertain the meaning of the ambiguous observations. There are several potential responses to your inquiries.

First, the executives may provide you an explanation that is problematic. For example, they may sheepishly concede the “ambiguous” words are an understood code for specified classes or groups of employees – older employees, women, people of color, etc. If this is the explanation (perhaps unlikely), you need to address this issue and get the situation corrected before the courts correct it for your company, typically with a large price tag attached.

Second, the executives may provide you an innocent explanation that assuages your concerns completely. Upon receiving this explanation, you may decide that nothing further needs to be done.

Third, the executives may provide you an explanation that falls somewhere between the opposites described above. The language they are using may simply be sufficiently ambiguous that, regardless of the intended meaning, an employee may believe the language reflects some unstated biases or prejudices. If that is the employee’s perception, it is the prism through which he/she will interpret other actions and statements of the executives. Moreover, again regardless of the intended meaning, the plaintiff’s counsel will spin the language to the fact-finder (whether judge or jury) as reflective of bias. Given that your company’s employees may give the language a prejudicial interpretation, and given that their lawyers certainly will give the language a negative and prejudicial interpretation, your “intervention” and guidance likely would be beneficial.

Let’s face it – communications problems often drive employment litigation. Sometimes the words used are, at best, unclear with regard to the speaker’s intent, and at worst, reflective of bias or prejudice. If the dispute results in litigation, you can be sure that the lawyer representing your employee will argue the latter. The fact-finder then will have to sort out what the executive or manager intended. Given juries’ predispositions to interpret the facts in a manner consistent with employees’ views, you may not want juries resolving issues relating to ambiguous language.

Let me offer a few concrete examples. References to “dead wood” are not uncommon in age discrimination cases. What exactly did the speaker mean – someone who no longer is contributing meaningfully to the success of the organization, or someone who is old? What if the only workers who were characterized in this fashion also happened to be the older employees in the workforce? As this last question reveals, arguments relating to the intent of the speaker or the meaning of words are not divorced from other facts – they are interpreted in context. If, as hypothesized above, the only workers who received the appellation “dead wood” were old employees, the speaker’s intent might not be so benign. Conversely, if this phrase was used to describe unproductive workers of all ages, it might be easy to demonstrate age neutrality in this language.

Likewise, age discrimination cases sometimes include references to “dinosaurs”. What is meant by this ambiguous language? Is this merely a euphemism for “old”? (In one case, I did hear a semi-reasonable explanation for the word “dinosaurs”; the speaker asserted that the term was age-neutral and that he simply was referring to employees who were unable to adapt to a changing environment, much like dinosaurs were unable to adapt to the planet’s changing environment. It’s clever, and may have been completely genuine, but I’m not sure a jury would buy it.)

Another phrase that sometimes occurs in age cases is “comfort zone,” as in, “the employee won’t get out of his comfort zone.” This could apply to employees of all ages, and may simply reflect an unwillingness by certain employees to take on new responsibilities or challenges with which they may be unfamiliar. But, again, if this characterization is only used for employees in upper end of the protected age group (say, 55 and up), it may be a proxy characterization for “old.”

It’s not just age cases that provide the opportunity for unclear or ambiguous language. References to the “good old days” are subject to various interpretations, not all of which are good for defendants. A plaintiff’s lawyer may contend that this phraseology is an allusion to a period when women typically held subservient or subordinate positions in the workforce. When trying to persuade a jury that the failure to promote a woman was a merits-driven decision, this type of ambiguous language may complicate the explanation.

At times, the ambiguity may stem from the lack of an associated explanation. For example, a number of years ago I was involved in the defense of a collective action age discrimination lawsuit. As we learned during the discovery process, a presentation had been made by the Vice President of Human Resources to the Company’s Board of Directors. He began the presentation by emphasizing that the company should increase the number of women in management. So far, so good. He then went on to state that the company should increase the number of people of color in management. Again, an admirable goal. Then, the VP, who was a bright, thoughtful and unbiased guy, emphasized that the company should “decrease the average age” of the executive team. As you can imagine, the discovery of this Board presentation was like manna from heaven to the plaintiffs, none of whom had been present when the words were uttered and who only learned about the loose language during the discovery process. Here, the ambiguity was the VP’s failure to offer explanation and context to the observation he made. What he tried to convey, ineffectively, was that most of the company’s senior executives were nearing retirement age and, up to that point, the company had not done careful succession planning. Unfortunately, that’s not what he said. There was no reference to succession planning in the presentation and no one present asked the VP of Human Resources what he meant.

Another case I handled provides an additional illustration of why it is critically important to provide context when creating documents that touch on workforce issues and protected classes. In the second case, the Director of Human Resources simply wrote on a piece of paper, “Thomas, 54; Swift, 57,” with the numbers corresponding to the two workers’ ages at the time the document was created. But, rather than reflecting an inappropriate focus on the employees’ ages, the HR Director was making a note to himself that although Thomas was being laid off in a RIF, Swift was being retained. In short, he felt the notation demonstrated that the company was not acting in a discriminatory manner, but rather was terminating the younger of the two employees. Unfortunately, by the time the case went to trial, the company had undergone a second RIF and Swift had been discharged in the second workforce reduction. Thomas and Swift brought suit together and we were left with a document, created by the Director of Human Resources that merely listed the two employees and their ages. Had the HR Director provided additional context and explanation when he first created the document, the logical inferences argued by the plaintiffs’ attorney – the company was impermissibly concerned about the ages of its employees – might not have seemed like such a logical interpretation.

Note that it is not just juries that you need to be concerned about. When judges are evaluating motions for summary judgment, they are engaged in the assessment of whether material facts are in dispute. If so, the case cannot be resolved at the motion stage but rather, must be presented to the jury. When assessing this issue, judges are often loathe to interpret ambiguous language, particularly since, when deciding a summary judgment motion, all inferences are resolved in favor of the non-moving party. In other words, if a defendant-employer is moving to have a case dismissed on summary judgment and material facts are subject to alternative explanations, all inferences are interpreted in favor of the plaintiff-employee.

A recent case illustrates the point above. In Marlow v. Chesterfield County School Board, Civil File No. 3:10cv18-DWD (E.D. Va. November 3, 2010), a school administrator brought an age discrimination lawsuit against her former employer. After a successful 20-year career, the employee argued that she was compelled to take early retirement in lieu of a demotion that would have had negative financial consequences for her retirement benefits. A pivotal issue in the case was the school superintendent’s reference to her lack of “21st Century skills” as a reason for her demotion. The school board argued that this ambiguous phrase referred to a “nationally recognized skill set,” involving the integration of modern technologies for research, organization, evaluation, and communication of information. While acknowledging that there may indeed be a widespread understanding of this terminology, the court stated, “There remains, however, a genuine issue of material fact as to whether [the speaker’s] use of the phrase ‘21st Century skills’ could have reflected an age bias with respect to Marlow.” (Emphasis in original.)

Moreover, as suggested above, assessments of how a speaker intended an ambiguous phrase is assessed in the broader context of related facts. In the Marlow case, for example, the plaintiff argued the ambiguous language was not age neutral, pointing out that the superintendent had asked employees to participate in a survey which began by categorizing them into age ranges such as “younger than 30” or “52 or older.” The same survey involved characterizations of whether individuals were “digital natives” or “digital immigrants,” the former being persons born after a particular technology had been invented and the latter being persons born before a particular technology is invented. “Digital natives” were perceived as having capabilities that “digital immigrants” lacked, regardless of whether they actually possessed superior technological abilities. It belabors the obvious to state that an assessment that favored “digital natives” would correlate directly with younger employees.

The potential favoritism of younger employees also was corroborated by the way other employees were treated. At the same time Marlow was being demoted, the school superintendent made the decision to lay off two technology education teachers. Among other assessment criteria, the superintendent evaluated the teachers’ technology-based coursework in college, regardless of how long ago the teachers had attended college. Unsurprisingly, with this factor as the primary criterion involved in the assessment, the most senior and the oldest teachers were the ones selected for layoff.

Further, the court found it significant that the plaintiff’s supervisor had never previously offered any criticisms of her communication skills when critiquing her performance. As the court implicitly recognized, an employee – particularly one who has performed well throughout her employment – should not be learning of supposed performance deficiencies only upon the event of her demotion or discharge. For the reasons described above, the court denied the employer’s summary judgment motion, leaving it to the jury to determine whether Marlow was a victim of age discrimination.

The bottom line is that ambiguous language, whether expressed orally or in writing, can create problems for employers in discrimination litigation. Likewise, shorthand phrases subject to multiple interpretations and unexplained statements that would appear to be discriminatory also should be avoided. With just a little extra time and thought, executives and management employees should be able to avoid this type of problematic language.

I invite readers to add a comment or observation to this article by identifying the types of problematic “ambiguous” words or phrases you have seen at your company or in litigation you have handled. What was intended by the language and how did the plaintiff or his/her counsel argue the words should be interpreted?