- An AT&T manager’s allegedly aging comments about not wanting to hire “tenured” employees failed to show that a 60-year-old customer service representative (CSR) in Texas has denied a promotion because of his age, the 5th U.S. Circuit Court of Appeals held (Smith v. AT&T Mobility Services, LLCno. 21-20366 (5th Cir. May 17, 2022)).
- In 2018, after his position was transferred to another establishment, the employee accepted a much lower paid position to avoid relocation. He applied for several higher paying Customer Service Manager (CSM) jobs locally, but was never selected. He claimed that during this time, his manager told him that she “wasn’t going to hire permanent employees” at their establishment because it was “state-of-the-art…with technology and l ‘most advanced equipment’ and needed CSMs that are ‘innovative’ and capable of leading the facility ‘in the right direction’. Believing he had been denied a promotion because of his age, CSR sued AT&T for age discrimination under the Age Discrimination in Employment Act and the from Texas.
- The 5th Circuit upheld AT&T’s summary judgment. The manager’s alleged comments presented a close appeal, they said. In context, his use of “permanent employees” seemed like a euphemism for age, the panel noted. But “incumbent” is not synonymous with age, nor is it generally recognized as an expression of ageism, the court explained. Thus, for “permanent employees” to be considered direct evidence of discrimination, the CSR had to establish that the manager meant age. In the absence of such evidence, the court assumed that she believed “permanent CSR employees simply have the wrong kind of background.” Additionally, under 5th Circuit precedent, CSR’s claim failed because other employees close to his age were promoted to CSM positions or transferred from other facilities.
Overview of the dive:
As with many ADEA claims, this one involved ageist comments from a manager followed by adverse action. The case shows the difficulty of proving discrimination based on such remarks. The call was close, the 5th Circuit acknowledged. The manager’s comments were made during the relevant period by someone involved in promotion decisions. And the manager’s direct reference to “permanent employees” identified a category of employees she would not consider for the position.
Given the context, “permanent employees” seemed to be about age, not seniority, the 5th Circuit noted. For one, the position of CSM requires years of relevant experience, so it seemed unlikely that the manager intended to disqualify an entire class of individuals based on their seniority, the panel explained. Moreover, the manager’s explanation for excluding permanent employees – that they would be less “innovative” and unable to run a “state-of-the-art facility” with high-level technology and equipment – has “completely to do with age stereotypes,” the court noted.
But the plaintiff had to go further. For the comment to be direct evidence of discrimination – evidence that directly proved that he had not been promoted because of his age – it would have had to show that the manager meant “seniority” by age, for example by providing testimony from other employees that “incumbent” was commonly understood as a code word for age.
The comment was also not sufficient for the claim to be judged on the basis of circumstantial evidence. Other CSR-aged employees were given CSM positions, the court found.
By comparison, emails leaked earlier this year in an age discrimination case against IBM suggested a more direct animosity against older workers. In an email, an executive appeared to refer to older employees as “dinobabies” who should be asked to leave the company and become an “extinct species”.
Employers should also stay on top of how they write job postings, HR Dive previously reported. An ad hiring “digital natives” may be more subtle than an ad looking for “younger” workers, but it can still be construed as discriminatory, the lawyers warned. Similarly, the use of phrases such as “recent college graduate” may violate ADEA if they tend to discount older workers.