The Age Discrimination in Employment Act (ADEA) prohibits discrimination on the basis of age against employees who are 40 years of age or older. In times like these, when many employers are reducing workforces, it is worth taking a moment to consider lessons offered by two recent cases that show how careless comments can give rise to age discrimination claims.

In Mauer v. Deloitte & Touche, LLP, an Ohio federal court allowed an employee to proceed with an age discrimination claim even though he had received a poor performance review before his discharge. An upper-level manager gave a speech to employees during which he analogized ridding the company of poor performers to pruning a blueberry bush. When asked what he meant by the "pruning" comment, the supervisor explained that pruning a blueberry bush is accomplished by cutting off older branches to make room for younger ones. The court concluded that the pruning comment was direct evidence of age discrimination and that, even if it was not, the fact that the employee had always received "on track" performance ratings before the "pruning" speech but received an "off track" rating after the speech was sufficient grounds to allow the case to go to trial and let a jury decide whether the employee's discharge resulted from age bias.

More subtle comments can give rise to age discrimination claims as well. In Marlow v. Chesterfield City School Board, a Virginia federal court allowed a school administrator whose position was eliminated as part of a reduction in force to proceed with an age discrimination claim. After learning of the superintendant's decision to lay him off, the administrator asked the school district's superintendant why he had not chosen to lay off a younger, less experienced colleague instead. The superintendant replied that he wanted to retain "21st century communication skills." The superintendant also recommended layoff of the school district's two most senior computer science teachers for an alleged lack of technology skills and gave a PowerPoint presentation on "21st century skills," during which he compared "digital immigrants" (people born before a particular technology existed) unfavorably with "digital natives" (people born when such technology already existed). The court found that the "21st century communication skills comment," in isolation, was not direct evidence of age discrimination. But after considering the comment in the context of the superintendant's unfavorable description of "digital immigrants" and his recommendation to lay off senior technology educators, the court concluded that there was enough circumstantial evidence of age discrimination to let the case go to trial and allow a jury to decide whether the layoff decision was the result of age bias.

These cases highlight the importance of ensuring that management and supervisory personnel are trained regarding what is and is not an appropriate basis for distinguishing between employees when making employment decisions. Additionally, the cases emphasize the importance of choosing your words carefully when communicating employment decisions and avoiding discussions concerning anything other than specific job-related factors.