Age Bias at Work: As This Case Shows, There’s a High Standard to Meet

© Web Buttons Inc - Fotolia.com
© Web Buttons Inc - Fotolia.com

By Eric B. Meyer

A 51-year-old auto-parts specialist with lupus, fibromyalgia, diabetes and arthritis, claimed that his 29-year-old co-worker called him an “old cripple” and an “old man,” labeled him “too old to be trained,” and threatened to beat him with a baseball bat.

The 51-year-old responded by telling his manager that he would kick the 29-year-old’s ass and then came to work with a handgun in his car.

Wha Wha Whaaaaaat?!?!

Did the older employee overreact? Maybe. But was he the victim of a hostile work environment?

4 elements to prove hostile work environment

The case is Clark v. O’Reilly Automotive, decided this week (May 23, 2011), by the United States District Court for the Eastern District of Arkansas.

To establish that an employers has created a hostile work environment in Arkansas, a plaintiff must prove four elements:

  1. He was subjected to harassment as a result of his membership in a protected class (e.g., age, disability);
  2. The harassment was both subjectively and objectively unwelcome;
  3. The harassment was sufficiently severe or pervasive as to affect a term, condition, or privilege of employment; and
  4. The employer knew (or should have known) of the harassment and failed to take prompt and remedial action.

Why the court found no bias

Given this “stringent standard,” the court found that Clark could not demonstrate that he could survive summary judgment. First, the court noted that the plaintiff only complained once about age- or disability-related animus, and the company subsequently offered the plaintiff a transfer to another store, which he accepted.

Article Continues Below

Second, the court held that even if the plaintiff could demonstrate that his harasser routinely called him names like “cripple” and “old man,” that would amount to nothing more than mere teasing, which is not actionable conduct under federal law.

Finally — and this is my favorite part of the opinion — the court recognized that while the harasser had threatened to hit the plaintiff with a baseball bat, because the plaintiff was packing heat on company property, it “mitigates the severity” of the harasser’s threat.

And here I thought that was the Chicago way.

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

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

Topics

Leave a Comment

Your email address will not be published. Required fields are marked *