Stray Comments can Lead to Employer Liability

Do you ever read court opinions just for amusement? OK, so maybe I could benefit from a 12-step program. But there was one decision that left me shaking my head lately. I am always amazed by comments made by management that become the plaintiff’s Exhibit A in a case.

Today’s case, Sloat v Hewlett-Packard Enterprise Company, is a recently published opinion by the U.S. Court of Appeals for the Sixth Circuit brought under the Age Discrimination in Employment Act (ADEA). Let’s look at some of the facts in this case before I get to my point.   

The plaintiff, Robert Sloat was hired in 2011 by Hewlett-Packard when he was 54 years old. Some may say that is when workers are in their prime. From my perspective, that prime lasts well into the sixties. But, the ADEA begins protecting employees from age discrimination when they hit that ripe old age of 40. Seriously? That law should be revised. As an aside, the Michigan civil rights law just prohibits “age discrimination,” so showing favoritism to older workers over youngsters because of age is also unlawful.

Going back to Sloat, his first five performance reviews were excellent, and his managers were so pleased that he exceeded their expectations that he was handsomely rewarded with a 30% bonus. By June 2016, Sloat was promoted to an executive-level director’s position, and his performance review for that fiscal year (which ended in October) was also positive. Sloat had developed a training program called “Ropes to the Ground,” and he began implementing it for Hewlett-Packard throughout the Americas and Asia-Pacific Japan territories.

When Sloat turned 60, he was transferred to a different group within Hewlett-Packard. Sloat’s former supervisor told him this was a good thing “they want Ropes to the Ground.” But when Sloat was reassigned and began reporting to Steven Hagler, he was told by Hagler he was unsure what Sloat's new responsibilities would be or what would happen to the Ropes to the Ground program.

During his first meeting with all of Hagler’s direct reports, a PowerPoint presentation showed Sloat as having no responsibilities. Worried, Sloat volunteered to “step up” to replace the director of the analytics team. Let’s just say things were all downhill for the over-the-hill Sloat from that day forward.

Sloat described Hagler as cold from the beginning and was told he was not viewed by Hagler as a “a top performer” and that he would only be receiving an 8% bonus. Sloat was Hagler’s oldest direct report.

A month later, during another meeting with the direct reports, Hagler’s chief of staff referred to Sloat as Ron (instead of his name Robert) and when Sloat objected, she said she would just refer to him as “Uncle Ron.” Everyone laughed, including Hagler who also failed to intervene. Sloat then initially fumbled with a laptop when it was his turn to present, and Hagler commented that Sloat had “old skills” and assisted him. Hagler also referred to Sloat (sarcastically) as “young man” several times during that meeting.

“Meanwhile, on at least ten occasions after the … meeting, Hagler asked Sloat, ‘When are you going to retire?’” And, not long after Sloat complained to human resources, he received a performance rating of “stalled” which is the second worst rating that can be given.

Eventually, Sloat was slated for termination. The age discrimination lawsuit came next. The case was dismissed by the trial court but reinstated by the appellate court.

Thoughts? Have you ever heard comments made about an employee’s age? Have you ever made any jokes about it yourself? These are sometimes referred to as stray comments, but they are always recalled by and relied upon by a plaintiff to prove the unlawful animus. Over the years I have defended many cases involving comments that I would have rather not been made.

For example, I defended a case where the plaintiff was friends with top leadership and when they would go to lunch they sometimes asked one another what they planned on doing when they retired. This became plaintiff’s “evidence” of alleged constant inquiries into when the plaintiff was going to retire. (Incidentally, the case was dismissed by the federal district court, and the dismissal was upheld by the 6th Circuit on appeal, mostly due to the sharp litigation skills of the defendant’s brilliant yet humble attorney).

Comments made between friends are often the source of such evidence because there is sufficient comradery and trust to provide the opportunities for comments that would not have otherwise been made. I have also heard comments between friends comparing skin color when the white employee was tanned by the sun, resentful “gimp squad” comments about employees who were permitted favored light duty, and really inflammatory comments towards individuals from the Middle East or about the employee’s race.

In fact, I remember being told at work that I was over the hill when I turned 40 a couple of decades ago! And, surprisingly the comment was made by an employment attorney!

My point for writing this article is to remind everyone that there is no place for such comments in the workplace, even between “friends.” When comments related to a protected status are made, management must step in and document some corrective action because it is the right thing to do and because the discipline notice will become the defendant’s Exhibit A.

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