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Sep 13, 2011

By Eric B. Meyer

You know what’s not a good business practice for a car dealership?

Referring to an older male employee as “old man,” “pops,” and “old mother******” and then steering car sales away from him to younger employees. Age discrimination is serious business, yo.

The case is Dediol v. Best Chevrolet, Inc. Paul Mollica at summarizes the colorful facts:

Dediol, a Christian aged 65, alleged that the used car sales manager (named Clay) routinely threatened and cursed at him in the workplace. By way of example.

  1. When Dediol sought July 4, 2007 off to volunteer at a church-related event, Dediol alleges that Clay told him, “You old mother******, you are not going over there tomorrow” and “if you go over there, [I’ll] fire your f*****g ass.”
  2. When Dediol arrived at work early on July 4, Clay put his shoes on Dediol’s desk and stated: “Do you see these shoes? Your God did not buy me these shoes. I bought these shoes.”
  3. After that date, Clay never again referred to Dediol by his name, but instead called him names like “old mother******,” “old man,” and “pops,” up to a half-dozen times a day until the end of Dediol’s employment.
  4. Hostile comments about Dediol’s religion included “go to your God and [God] would save your job;” “God would not put food on your plate;” and “[G]o to your f****ng God and see if he can save your job.”
  5. “On many occasions, there were incidents of physical intimidation and/or violence between Clay and Dediol. According to Dediol, Clay would threaten him in a variety of ways, including threats that Clay was going to ‘kick [Dediol’s] ass.’ On one occasion, Clay took off his shirt, and stated to Dediol, ‘You don’t know who you are talking to. See these scars. I was shot and was in jail.'”
  6. He was denied a requested transfer to sell new cars at the same dealership: “when Clay learned of Dediol’s request, Clay denied Dediol’s transfer and stated, ‘Get your old f*****g ass over here. You are not going to work with new cars.'”
  7. On Dediol’s final day of work before resigning, Clay proclaimed, “I am going to beat the ‘F’ out of you,” and “charged” toward Dediol in the presence of nine to ten employees.

Based on the foregoing, Dediol alleged, among other things, that his employer had violated the Age Discrimination in Employment Act (ADEA) by creating a hostile work environment.

ADEA extends to claims of hostile work environment

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment. One way in which employers run afoul of Title VII is by creating a hostile work environment.

A hostile work environment is one in which an employee is subjected to severe or pervasive harassment as a result of his membership in a protected class, where the alleged harassment is both subjectively and objectively unwelcome. Additionally, the employer must have known (or should have known) of the harassment and failed to take prompt and remedial action.

Hostile work environment claims under Title VII are limited to:

  • race,
  • color,
  • religion,
  • sex, and
  • national origin.

See anything missing from that list? Hint: It’s age. Now, I know what you’re thinking:  What’s the big deal? Can’t a plaintiff assert a viable hostile work environment claim under the ADEA?

Well, apparently, those waters are largely uncharted. Who knew? I checked the Philadelphia-based Third Circuit (PA, NJ, DE, USVI) model jury instructions and, while they do contemplate ADEA hostile work environment claims, the comments confirm that there is no Third Circuit case law on this subject.

ADEA and Title VII share common features

In fact, the Dediol Court cited just one decision from a circuit court of appeals — this one from the Sixth Circuit in Cincinnati– applying Title VII to a hostile work environment cause of action under the ADEA. The Sixth Circuit reasoned that the ADEA and Title VII share common substantive features and also a common purpose: “the elimination of discrimination in the workplace.”

Accordingly, it wouldn’t be a stretch to permit a plaintiff to pursue a hostile work environment claim under the ADEA. Accordingly, the Dediol Court held that a plaintiff may pursue a hostile work environment claim based on age discrimination under the ADEA.

Takeaway for employers: Don’t condone behavior against older employers which could be construed as creating a hostile work environment. Also, be sure to include in your anti-harassment training tangible examples of ageist behavior that could lead to hostile work environment claims.

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