It’s hard to believe what may pass for age discrimination these days.

Hi there.

Did you have a nice weekend? Overall, I did too. However, Saturday was rough. How rough? On a scale of 1-10, it was Chuck E. Cheese.

Sunday improved. Mildly.

But, now I’m in a coffee shop, sans kids, sans ball pits, costumed rats, and shopping carts. Instead, I’m nicely caffeinated, listening to a Spotify playlist of Rolling Stone’s 100 Greatest Hip Hop Songs of All Time, wondering how House of Pain’s Jump Around didn’t make the list and punching out a blog post on age discrimination to you fine folks.

Wait! Another age discrimination post?

Yep. Because I want to juxtapose *** Googles “juxtapose” *** yes, juxtapose a constant barrage of age-related comments from non-decisionmakers with a situation in which a few stray, marginally age-related comments from the shot-callers can create a viable age discrimination.

(So, it’s not “jux-ta-pose(y)” like “ring around the rosey”? #themoreyouknow)

Here we go, yo. So, what’s so what’s so what’s the scenario?

The case is Tighe v. BAE Systems (opinion here).

BAE Systems employed Dr. Tighe overseas. When he was ready to return to the USA, Dr. Tighe applied for an audit position within the company, which was considered a promotion. Dr. Tighe didn’t get the promotion.

Dr. Tighe was old. How old? Age-discrimination old. Hence, this blog post.

Buzzwords create an age discrimination buzz.

Here’s the email that Dr. Tighe received from BAE explaining why he was passed over for the audit position.

We have concluded the down-select process for the Internal Audit role. Unfortunately you were not selected to proceed in the process. You did a fine job in the interview so there was no issues there. IF [sic] we were only filling the Internal Audit role, I think you would have made the down-select. But, as you know this is a developmental rotational assignment, so we have to fill this role and factor in a view as to what the next role would be. We interviewed ten qualified candidates from throughout the Inc business and had to differentiate somehow – and future assignment potential was as [sic] tie breaking factor. I am sorry this did not work and am happy to discuss it further.

Dr. Tighe also reported the following conversation:

Dr. Tighe: “[D]id I stay in the UK too long, was it an out of sight, out of mind situation where people didn’t remember me and remember my qualifications?”

Mr. Gray: “[N]o, Doug, it’s really an out of sight, out of phase situation.”

So, we have references to “future assignment potential” and “out of phase.” What do you think? Are these comments enough to suggest that age motivated the company not to promote Dr. Tighe? Maybe, Judge Catherine C. Blake from the United States District Court for the District of Maryland can help:

There is sufficient evidence in the record to create a genuine dispute as to whether the defendants’ proffered nondiscriminatory reasons for not selecting Dr. Tighe were false. The factfinder should determine the meaning of the phrases “future assignment potential” and “out of phase” (if Mr. Gray is found to have said the latter). A reasonable jury could conclude either (1) the comments reflect an impermissible assumption that because he was older, Dr. Tighe had less potential to take on future assignments or (2) the phrase “future assignment potential” referenced Dr. Tighe’s answer to the interview question. 

Decisionmakers should choose their words carefully

Just wow! I’m granting summary judgment for the employer here. But, then again, I’m not the judge.

A result like this just goes to show that decisionmakers — with training, of course — must be careful about using terms and phrases that could reasonably(ish) be construed as suggesting that a protected class motivated a decision to hire or fire.

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