According to the AARP, 78% of older workers have seen or experienced age discrimination in the workplace. As awareness of ageism increases, lawsuits that allege age bias can help employers understand what constitutes discrimination. A recent case from the U.S. Court of Appeals for the Fifth Circuit, Smith v. AT&T Mobility Services, L.L.C., No. 21-20366 (5th Cir. May 17, 2022), should give employers pause about using other words that could potentially be a euphemism for “older worker.”
What the lawsuit was about
Smith, a customer service representative at AT&T, alleged that he was denied a promotion because of his age. His manager told him that she was not going to hire any tenured employees. The manager wanted innovative employees in the management positions. Smith took this to mean that he was being denied the promotion because of his age. He sued under the Age Discrimination in Employment Act and Texas law.
The district court found that Smith failed to exhaust his administrative remedies as to one claim and failed to establish a prima facie case of discrimination as to the other two claims. Smith appealed. The Appellate court affirmed the district court’s decision, but they did say it was “close.” AT&T did not discriminate against Smith by using the word tenured, because there were other employees of the same age as Smith who were promoted to customer service management positions.
Be aware of the verbiage used to speak to employees
This case is another example of how careful employers need to be about age discrimination, not only in job postings. It’s imperative to train managers about the vagaries of ageism in the workplace to avoid a costly lawsuit. Even though AT&T prevailed, the company still had a pretty hefty legal tab. Don’t try to get around the ADEA by using terminology that could screen out older workers, such as “digital native,” or “recent college grad.” Remind employees and managers about ageism. Document everything. Pay attention to other cases about age discrimination, such as the iTutor case or this case about retirement-driven talk. You may not be able to prevent an employee from feeling discriminated against, but you can certainly protect your business by doing what you can to avoid ageism.