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Oct 10, 2014

By Eric B. Meyer

General Zod is not impressed.

Carlyn Johnson was diligent and hard-working. As a security guard, he had a reputation of never refusing an extra shift. Indeed, his  dependability earned him the nickname, “Superman.”

Notwithstanding Mr. Johnson’s willingness to work, a field service manager expressed concern about Johnson’s ability to work long hours. This field service manager told both Johnson and Johnson’s wife that Johnson was “too old” to be working and it was “time to hang up [Johnson’s] Superman cape and retire.”

“Too old” comments lead to age discrimination suit

At some point, as is usually the case with these blog posts, Mr. Johnson allegedly engaged in behavior that violated the company’s work rules and warranted termination. So, Johnson was fired.

Mr. Johnson later sued for age discrimination. The lower court granted the employer’s motion for summary judgment, but the St. Louis-based Eighth U.S. Circuit Court of Appeals reversed it. Then, the appellate court agreed to rehear the case and reconsider.

Acknowledging that the “Superman” comments “could raise a question whether age was a factor in Johnson’s termination,” the court noted that the comments came from one field service manager, and there were two others involved in the termination decision. And, remember, that in an age discrimination case, unlike other forms of discrimination, age must be the “but for” reason (i.e., the motivating factor) for the plaintiff to prevail.

Here, given the involvement of three decision makers, the Eighth Circuit (in this opinion from Johnson v. Securitas Security Services USA) felt that no reasonable jury could find that Mr. Johnson would meet his burden of persuasion:

Even viewing the evidence in the light most favorable to Johnson, the court would be required to speculate to assume Hesse prevailed on Parker and Bunch to take advantage of the terminable offense to fire Johnson because of his age. Accordingly, the evidence of Hesse’s comments is not sufficient to raise genuine questions of material fact regarding whether Securitas’s stated reasons were pretext or whether age was the “but-for” reason for Johnson’s termination.”

Takeaway for employers

Folks, the employer got more than a little lucky here.

Put aside the Superman comments, because I don’t see how Superman correlates with age bias. But, you have a decision maker allegedly calling the plaintiff “too old.” IMHO, a jury might conclude that age was the “but-for” reason for termination.

Don’t let this become an issue in your workplace. Train your managers (among others) not to comment on an employee’s age.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

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