​(Fictional) Mailbag: What Do Dinosaurs Have To Do With Age Discrimination?

By Michael G. McClory - Bullard Law

May 26, 2017

As we approach the Memorial Day holiday, and before we look at today’s (fictional) mailbag letter, The Bullard Edge wants to take this opportunity to thank all who have served our nation, especially those who have fallen in service.  Thank you for your service. 
 
Turning to the (fictional) mailbag, we have a letter from Sam who works for a social media start-up.  She is concerned about potential liability for age discrimination flowing from the owner’s regular complaints about employing “dinosaurs.”  Sam brought her concerns to us.  Here is her question and our response.
 
Sam’s Question:
 
I think we are right on the merits, but still vulnerable to an age discrimination claim.  It was uncomfortable, but I shared this opinion with my boss, company owner Devin (not his real name because I want to protect the 23-year old boy genius).  Devin expressed his disagreement by using a dismissive 8-letter word that I prefer not to repeat.
 
Here is the situation.  To the extent that Devin doesn’t override me (very common), I am in charge of personnel at a “next generation” social media company.  The company is pretty cool and new, but I don’t want to say its name (so let’s just call it Soak).  When he bought it two years ago, it was a bankrupt email-enhancement business with a great lease.  Devin essentially bought the lease.  He has scrapped the email aspect entirely, except for a few clients that had longer-term contracts.  Devin is putting together a social media platform that he says will make Instagram and Snapchat seem like dinosaurs.
 
Actually, “dinosaurs” and other euphemisms for “old” are what prompt this letter.  Devin is constantly saying things that seem to have ageism at their core.  I don’t believe he is ageist, but sometimes I have to think about it.  For example, about a month ago I heard him yelling at someone that he was going to “get rid of all the dinosaurs at Soak.”  I freaked and immediately investigated.  It turns out he was talking to his brother Kyle, age 22.  I told Devin that sounded age discriminatory and he called me an idiot who doesn’t understand history.  According to Devin, when the dinosaurs were wiped out, it wasn’t just the old ones; baby dinosaurs died, too.  The reason, he said, is that dinosaurs were not compatible with the “earthly environment back in the tar pit days.”  He may not have a paleontologist's understanding of dinosaur extinction, but I do see his point: in order to thrive, Kyle (and Soak, for that matter) needs to adapt to an ever-changing social media market.
 
This week, though, Devin may have gone too far.  We were interviewing a candidate named Edna for a programming position.  To me Edna came across as very skilled; she impressed me with her articulate description of her experience working in the Silicon Valley during the late 1980s and early 1990s.  However, Devin clearly found her frustrating.  He repeatedly asked her questions relevant to the programming job with Soak and every time Edna’s response referenced what she did in Palo Alto.  After the umpteenth answer like this Devin stood up, literally threw his hands up in the air, and walked away audibly muttering, “I’m not hiring any dinosaurs.”  Edna clearly heard him and tried to joke.  “Some of my best childhood friends were dinosaurs,” she said.
 
I told her we would be in touch and then spoke with Devin.  I told him that I know what he means by dinosaur, but that Edna doesn’t and that a jury might not.  He just dismissed my concern and said that he will not hire anyone who is not open to being innovative.  That makes sense to me, but I am worried.  What do you think?  Thanks.
 
The Bullard Edge's Response:
 
We share your concern, Sam.  Devin sounds like a bit of a hothead ~ articulate, but short-tempered.  Your description of him flying off the handle towards his brother says it all.  Here are some specific observations about your situation.
 
First, you have zeroed in on the age discrimination laws and that is appropriate.  The federal Age Discrimination in Employment Act (ADEA) protects applicants and employees who are 40 years of age or older from being treated less favorably than a younger worker because of age.  The regulations provide more detail.  Oregon law provides similar protections for workers who are 18 years of age and older.  While you did not mention Edna’s age, we are able to surmise that she is over 40 from the fact that she was working in the late 1980s.
 
Second, let’s consider the relevant facts from your description.  Soak is looking to fill an open programming position.  As far as we can tell, Edna through some combination of education and experience possesses the skills required for the position.  You did not say whether there is another, more qualified candidate, but we will assume there is not.  Given those facts, if Soak decides not to offer the position to Edna, Soak is going to have to be able to articulate a legitimate non-discriminatory reason for that decision.  In other words, Soak is going to have to give a reason other than age for passing on Edna.
 
Third, the circumstantial evidence may allow an inference to be drawn that Devin is not going to like.  All of the talk about dinosaurs (and you referenced “other euphemisms for ‘old’”) could cause BOLI, EEOC or a jury to conclude that Devin is referring to age.  If one of those fact-finders reached such a conclusion, then Soak could face liability for age discrimination.
 
Fourth, we understand what you are saying about the meaning Devin attaches to the term dinosaur.  He is not talking about age; he is talking about applying knowledge and skill in a manner necessary to meet the demands of the present tech environment.  This is an absolutely valid concept.  We worry that Devin may not have expressed himself in a way that will lead the enforcement agencies or a jury to infer that meaning.
 
Fifth, we want to draw your attention to an age-discrimination lawsuit filed by EEOC last week against a restaurant chain.  While we only have EEOC’s allegations at this point, based on EEOC’s press release it appears the employer will have an uphill battle on its hands.  Specifically, EEOC claims that the employer rejected a qualified applicant for employment who had “over 20 years of experience in the food and beverage industry” because of the general manager candidate’s age.  “In response to an inquiry by the applicant as to why [the restaurant] declined to hire him, the company informed him it was seeking a candidate who could ‘maximize longevity.’”  In other words, a younger candidate would be expected to stay in the position for a longer period of time.  EEOC described this as a violation of the ADEA.  “Age cannot be a factor in whether or not someone can earn a living.”  Even though we understand your explanation that Devin is not thinking about age, comments that sound age-related are difficult to overcome.
 
While The Bullard Edge is not going to give you legal advice or tell Soak how to run its business, we will tell you, in response to your question, that a simple rejection of Edna at this point could be problematic.  It is entirely up to Soak whether to offer the position to Edna, restart the interview process, or reject her application.
 
I hope this helps.  Good luck and best regards,
 
The Bullard Edge