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Is Asking “OK, Boomer?” Age Discrimination?

In a case pending before the United States Supreme Court, Babb v. Wilkie, Chief Justice John Roberts asked the lawyers if asking “OK, Boomer?” just once during the hiring process amounts to age discrimination.  He posed this question because the issue in the Babb case is whether age has to be the only reason for the adverse employment action or if it is enough to just be one of the factors.  Babb contends she was denied promotions for years in part because of her age. 

If the Supreme Court holds age only has to be a factor in the decision making process, this will be a shift from current law.  Currently, the standard for a plaintiff to prevail on a federal age discrimination claim requires the plaintiff to show the adverse employment action occurred because of the employee’s age.  This is a difficult standard to meet.  The Supreme Court’s decision in Babb, however, may be moot if pending legislation beats them to the punch. 

On January 15th of this year, the United States House of Representatives passed the Protecting Older Workers Against Discrimination Act.  It now moves to the Senate.  If the bill becomes law, it would make it easier for employee’s to win age discrimination claims under federal law.  Specifically, the bill only requires an employee to show age was a motivating factor of the decision rather than the sole cause. 

Employers should continue to monitor this issue as a positive holding will completely rewrite the law on age discrimination. As the work force continues to age and employees are working longer, such a change could be dramatic. Comments such as “you old geezer; when are you going to retire; how old are you anyway” can all lead to age discrimination claims.  But the test is made easier, such comments might be a guarantee for a judgement for the plaintiff!  We will keep you posted.    

Brody and Associates regularly provides training and counseling on maintaining a harassment free environment and on employment law issues in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560. 

Additionally, if this article generated any additional questions for you, please contact us at info@brodyandassociates.com.  We may address your question in a future blog post.