Sticks and Stones May Break My Bones
Sticks and Stones May Break My Bones, Though Names Can Also Hurt Me.
By Hugh W. Cuthbertson
Intentional employment discrimination is frequently difficult to prove, because an employee must demonstrate his or her employer’s discriminatory motivation.
An employer’s unguarded comments, however, can provide direct evidence of discrimination. Although employers have used certain code words over the years to mask an employer’s discriminatory intent, those words and phrases have by now become easily recognizable. Many employers have learned by now not to refer to employees over 40 as “old,” “old fashioned,” “ancient,” “slow,” “tired,” or “inflexible.”
Yet, less enlightened conduct still occurs. Last year in Canada one Member of Parliament (“MP”), Shelley Glover, was called on to withdraw her ageist remarks directed at another MP, 68 year-old Anita Neville, suggesting that Ms. Neville needed to be replaced by someone younger. Ms. Glover was quoted as saying:
“We need some fresh blood. We need some new people who have some new ideas and who are willing to stand up for their constituents. And I’m afraid Ms. Neville has passed her expiry date!”
A very recent case from the federal district court in Hawaii demonstrates that no country has a patent on being in the Stone Age.
In the case of U.S. Equal Opportunity Commission v. Hawaii Healthcare Professionals, Inc. et al. (D. Hawaii July 18, 2012), the U.S. District Court in Honolulu ordered the defendants to pay their former employee, Debra Moreno, close to $200,000 in back pay and liquidated damages upon a finding that Ms. Moreno had been willfully terminated on account of her age. Ms. Moreno, who was in her 50s, had been referred to by the company’s president and CEO as looking ‘like a bag of bones.”
In addition to this remark, the EEOC introduced evidence that the company president also said that Ms. Moreno was not the type of person she wanted to represent the company, because she was “old,” “looked old,” “sounded old on the phone,” and was “as slow as a slug.” The company president told Ms. Moreno’s supervisor to fire her because she was “too old.”
With direct evidence of this nature, it is no surprise that the court also ordered the company to do the following: 1) develop a policy and complaint procedure for age discrimination, and retaliation; 2) distribute that policy and procedure to all existing and new employees; 3) provide live annual training by a third party to all supervisory and non-supervisory employees; 4) retain an independent EEO consultant to assist with compliance with the court’s order; 5) post notice to its employees regarding the EEOC’s lawsuit and the court’s order; and 6) submit monitoring reports to the EEOC on an annual basis for 5 years.
The EEOC issued the following statement: “Age should never be a factor when evaluating an employee or job applicant’s worth. What makes this case especially appalling is the flagrant disregard for a worker’s abilities, coupled with disparaging ageist remarks and thinking. The EEOC will not tolerate such violations of civil rights law and is pleased by the court’s decision.”
Names can indeed be hurtful, not only to employees, but also to employers, as they may constitute direct evidence of discrimination.
For any questions regarding this topic, please feel free to contact the author of this blog or any of his colleagues.