The difference between what an employees feels is a hostile work environment and a genuinely unlawful one.


An employee in his early sixties worked under several managers, one of whom referred to the employee as “my b***h,” “motherf****r,” “old fart,” and “old motherf****r.” Upon seeking a raise, another manager told him that he was making too much money already and that “knowledge [did] not matter.” The employee interpreted this as an ageist comment because knowledge comes with age. Sometime later, two of his managers told him the company was “getting rid of the older guys,” which the employee understood as a threat that the company would try to push him out.

As you may have guessed, the employee later became the plaintiff in a discrimination lawsuit, in which he alleged that the defendant subjected him to a hostile work environment based on his age.

Last month, the Sixth Circuit Court of Appeals affirmed the lower court’s decision that the company did not violate the Age Discrimination in Employment Act.

I’ll explain why.

The ADEA recognizes a claim for discrimination based on a hostile work environment theory if the plaintiff’s “workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment.” Establishing a hostile work environment isn’t easy. A plaintiff must be over 40 and show that severe or pervasive age-based harassment unreasonably interfered with his work performance and created “an objectively intimidating, hostile, or offensive work environment.”

Let’s look at the crude comments from the one manager. While all of them are nasty, only two relate to the plaintiff’s age. Although, in context, a few age-based epithets could reflect that other demeaning comments were part of a hostile work environment, that wasn’t the case here. The plaintiff testified that his manager referred to him as “old fart” or “old motherf****r” three times total over three years.

It was what it was. The manager generally used foul language, which isn’t good, but it isn’t illegal either.

The appellate court also noted that most of the non-age-explicit comments preceded those referencing age. Likewise, when the plaintiff claimed that the manager poo-pooed his request for a raise because his “knowledge [did] not matter,” the court reasoned that an objective person would disagree with the plaintiff that this comment amounted to age-based harassment.

Were the plaintiff’s working conditions unpleasant? Yes. Did the plaintiff subjectively endure a hostile work environment? Yes.

But did the defendant expose the plaintiff to a hostile work environment that violated the ADEA? No.

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