The one they called “Grumpy Old Bastard” lost his age discrimination case.

Ol' Dirty Bastard.jpg

Only law blog with this pic. Fo Shizzle.

If only someone would’ve created a Grumpy Old Men / Wu-Tang Clan mashup. ODB passing the verse to Walter Matthau…

Oh well, you’re stuck with me blogging about an age discrimination case from the Northern District of Indiana. At least I’m off of the FLSA soapbox…for now.

Before I get to the age-discrimination case du jour — that sounds good; I’ll have that —  let’s discuss the Rolling Stone’s 100 Greatest Hip Hop Songs of All Time. Overall, a great list! Here’s what stood out for me.
Biggest (and most pleasant) surprise:
Mind Playing Tricks On Me (Geto Boys) at #5
Most overrated (Tie):
Flava in Ya Ear (Craig Mack) at #27
Outkast – 3 songs in the top 100
(Substitute one for a DMX, Ludacris, Big Pun, MC Lyte, or Queen Latifah hit)
Oh yeah, I forgot how good that song was:
Shook Ones – Part II (Mobb Deep) at #35
Thank you:
Drake and every modern “MC” is MIA.
But what about…:
DJ Jazzy Jeff & The Fresh Prince
(What else would you expect from this Philly guy? Summertime needs to be on that list.)
What do you think? Leave a comment down below or email me.

Sticks and stones…

I’ve written a bunch about the deep doo-doo in which employers often find themselves when asking about retirement or referring to an employee as “old man” or “old mother******.”

So, for sure, you’d think that 20 comments over the course of several months at work ranging from “old man” to “old bastard” to “grumpy old bastard” to “How you doing old man, how’s it going old man?’” would get a plaintiff’s age discrimination claims to a jury.

Well, it didn’t quite work out that way in Sterk v. Zimmer, Inc. (opinion here). The plaintiff claimed that these comments demonstrated that his age motivated the defendant to fire him. Except, well, Judge William C. Lee will let my readers know why not:

The court agrees with Zimmer that this evidence is insufficient to establish age discrimination under the direct method of proof. First, argues Zimmer, the comments made by coworkers referencing Sterk’s age do not constitute direct evidence of discrimination since isolated comments of non-decision makers are ‘stray remarks that cannot be direct evidence of discrimination’ and do not establish that a particular decision was motivated by discriminatory animus.”…While Sterk insists that one of his supervisors “referred to him as the ‘old man’ two or three times over an eight month period[,]” it is undisputed that that supervisor was not involved in the decision to terminate Sterk. 

What about a hostile work environment?

Well, yes. An employer may create a hostile work environment based on age. But, the plaintiff here didn’t allege a hostile work environment. And, if he had, 20 comments over several months probably isn’t pervasive enough to prevail.

Employer takeaways.

The comments — assuming they were made — probably weren’t communicated with malice. But then again, that doesn’t really matter.

Say it with me, “Intent doesn’t matter.” What does matter is how ageist/sexist/racist/etc. comments are received. If the target is offended, and a reasonable person in the target’s shoes would be offended, then you’ve got the makings of a hostile work environment — let alone a possible disparate treatment claim if the target is fired, as the story often goes.

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