OK Boomer—Are You Going to Sue for Age Discrimination?

By Kathleen J. Jennings (kjj@wimlaw.com)

As “OK Boomer” becomes a rallying cry for the younger generations, employers need to think twice about allowing that kind of banter in the workplace. Why? Because it could be evidence of age discrimination.

A recent case involving a tech startup illustrates how some comments by younger workers may be perceived to be evidence of age discrimination. (Robillard v. Opal Labs, Inc., D. Or., No. 3:16-cv-00780-AC, 12/17/19). Greg Robillard, at the ripe old age of 41, was hired as Lead Enterprise Engineer by Opal Labs. Robillard alleges that during his employment with Opal, the (younger) Senior Director of Engineering, said “thanks dad” when referring to Robillard, and that others at Opal referred to him as “old Greg,” and “Dad.” Robillard understood the terms to be perjorative, dismissive, and used to undercut him. The (younger) Vice President of Product referred to a job applicant as “some old guy in his forties,” and criticized others for referring to their computer displays as “monitors” as opposed to “screens.” Robillard also recalled other Opal employees posting a meme depicting Steve Buscemi dressed as a high schooler on Opal’s internal messaging system called “Slack.” Also, executive team members described Facebook as an activity for old people.

Robillard was eventually terminated, purportedly for poor job performance. He was replaced by a 32-year-old. He sued, asserting a number of claims including age discrimination, retaliation, and failure to pay overtime wages. Opal moved for summary judgment. The District Court granted summary judgment on the overtime claim because Robillard was an exempt employee. However, the Court denied summary judgment on the age discrimination because there were disputed issues of fact as to the reason that Robillard was terminated. However, the Court ruled that the comments alleged by Robillard were not direct evidence of age discrimination. For example, the court found the “thanks dad” statements were not overtly ageist in nature, as parents may be less than forty years old. However, these comments may nevertheless be offered by a plaintiff as evidence of discriminatory intent or animus.

The Takeaway: If any of you needed a reason to tell your employees to stop saying “OK Boomer,” here it is: all boomers are over the age of 40, so mocking the attitudes of this group could be perceived as mocking people over the age of 40—who are protected from discrimination by the Age Discrimination in Employment Act.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

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