“But I Was Just Kidding!” Is That a Defense to a Discrimination Claim?
During an industry-wide conference related to success strategies, a company executive is taking notes. The notes include a page with the header “Attracting and Retaining employees,” and underneath, writes “Fire all the old people.” The owner claims he was only kidding when he wrote this and was referring to a similar statement made in a joking manner by another company’s president. Eight months later, a 77-year old employee is terminated. Can he bring a claim of age discrimination based upon these notes?
Although the employer will be able to present evidence related to the intent of the owner when writing such a note, this type of statement in written form would at least be enough to get an age discrimination claim before a jury, according to a federal court in Alabama. Wheat v. Rogers & Willard, Inc., Case No. 16-0282 (S.D. Al. September 26, 2017).
According to the Complaint, Ralph Wheat began working for Rogers & Willard as a project manager/estimator in 2006. In 2014, at the age of 77, Wheat was terminated. He ended up filing a lawsuit against Rogers & Willard, claiming that he was terminated based upon his age in violation of the ADEA. He claimed he had direct evidence discrimination based upon some notes that one of the company’s owners had made during a meeting of a construction peer group in May of 2013 while discussing how to operate his company more successfully. These notes included the comment “’Fire all the old people; Fiat President”, a comment about many large companies bringing in new blood, a reference to the need to mentor the replacements of the “Older Guys—Ralph & Jerry,” and a reference to a vision of the future which included the phrase “i.e. new younger employees.”
The employer argued that these notes are not direct evidence of age discrimination. One of the arguments made by the employer was that the owner who had written these notes had offered an innocent explanation of them. The owner had provided an affidavit which said that he did not mean that his company should actually “fire all the old people,” but that he was only remembering what he had heard the president of Fiat say at an earlier conference in a joking manner. But the court disagreed that this explanation could wholly defeat employee’s claim. Instead, the employer could provide his explanation that he was not really being serious to a jury, but the jury would not “be required to accept such self-interested explanations over the plain meaning of the words themselves.” Additionally, the court rejected the employer’s argument that the eight months that had passed between the writing of these notes and Wheat’s termination was dispositive.
While an owner or manager might think it is clear that he or she is joking or not being literal, if something is said or written that is derogatory toward a protected class , an employee may at least have enough to pursue a claim. Employers must be sure that all executives and supervisors are well trained and aware that no such statements should be made-no matter what the context or what the intention.