Hey Old Man, When Are You Going to Retire? And Other Things You Should Never Say At Work.

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Photo by Andrea Piacquadio on Pexels.com

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

You would think that it would be simple to terminate a worker who admits to sending sexually suggestive messages containing nude photos and disparaging jokes about “women libbers” and “gays” over the company’s email system. Well, when that worker’s managers constantly ask him about his retirement plans, make comments about getting rid of “older” and “senior” workers, and even lower the scores of older workers on performance evaluations so younger operators would have a better shot at promotions and bonuses, you have the classic question of fact to be decided by a jury:  was the worker terminated for violating the company’s policy against sexual harassment, or was he terminated because of his age (57)? Add to that a claim of harassment on the basis of age, and you have a recent case out of Louisiana, Venable v. EnLink Midstream Operating, LP , M.D. La., No. 3:18-cv-00847 (2/20/20).

Plaintiff Venable’s emails came to light during a company investigation of another employee.  Venable had sent emails that included a joke (entitled “Moose”) featuring a picture of a woman’s genitals, another joke (entitled “Will the US Dollar fall?”) depicting a picture of a dollar bill lodged in between a woman’s buttocks, and an email (entitled “Heterosexual Male Pride Day”) which disparaged “women libbers” and “gays” and featured a picture of a completely nude woman with her hands placed suggestively on her chest. He admitted to sending all of them, and he was terminated.

The Plaintiff, however, did not go away quietly.  He claimed that he was “systematically targeted” “because of his age in an effort to secure his termination.” Plaintiff said that he was repeatedly called an “old man” and “old fart” by much younger employees, and that throughout 2015-2017, manager began harassing Plaintiff because of his age, referring to him as “senior” operator, “old guy,” and “problem guy,” in a derogatory and intimidating manner.  Plaintiff further claimed that his immediate supervisor told him that upper management directed him to “get rid” of the “senior” operators, including Plaintiff.  Plaintiff also claimed that upper management directed Plaintiff’s supervisor to force Plaintiff into retirement by constantly asking when he would do so. Plaintiff claimed he felt targeted, threatened, and offended, and this caused him to begin making mistakes at work that he did not usually make. He eventually filed a lawsuit alleging violations of the Age Discrimination on Employment Act as well as the Louisiana Employment Discrimination Law.

The employer filed a motion for summary judgment, but it was denied on the ground that there were genuinely disputed facts regarding the employer’s motive in Plaintiff’s termination– was he fired due to the emails or due to his age?  A jury will have to figure that out.  On the claim of harassment on the basis of age, the Court also denied the employer’s motion for summary judgment, finding that the Ellerth/Faragher affirmative defense was not available to the employer because the Plaintiff was allegedly the victim of a tangible employment action – termination – by at least one of his alleged harassers.

We’ve said it before, and we’ll say it again:  comments about the age or retirement plans of workers over the age of 40 can lead to claims of age discrimination.  Moreover, employees can use these types of comments as a shield against employment actions such as a termination that otherwise has good grounds.

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.

©2020 Wimberly Lawson

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