In age discrimination cases, seemingly "off the cuff" remarks
made by an employer can be crucial in proving your case. In a
decision handed down last month in a New York federal district court, comments
from a supervisor with respect to a promotional position that he was going
for "a more youthful approach" supported a teaching hospital
employee's non-promotion claim for age discrimination under the ADEA
and the New York State Human Rights Law (NYSHRL). In the same case, however,
the court found that the employee's termination was not discriminatory,
but rather was caused by a difficult relationship between a supervisor
and the employee.
Dr. Kathleen Mullinix was hired by the Mount Sinai School of Medicine as
an associate director when she was 65 years old. The director who hired
her left soon after, and she took over as interim director. The dean decided
to create a new position of Vice President to whom the new director would
report. Mullinix expressed an interest in the new position.
Mt. Sinai retained a headhunter, who seemed uninterested in Mullinix as
a potential candidate. Just before the school eventually hired a 51-year-old
candidate for the VP job, the operations manager allegedly said with respect
to the position that he was "looking for a more youthful approach."
The court found that the failure to promote Mullinix could lead a reasonable
jury to find age discrimination. According to the court, the mere fact
that the successful candidate for the VP position (51 when hired) was
significantly younger than the employee (67 when the new VP was hired)
was a reliable indicator of age discrimination. In addition, the comment
made by the operations director that he was "looking for a more youthful
approach" and that "the office is going to be different,"
were especially relevant because Mullinix was the oldest candidate for the job.
The court cited case law providing that "although the stray remarks
of a decision-maker, without more, cannot prove a claim of employment
discrimination, the more a remark evinces a discriminatory state of mind,
and the closer the remark's relation to the allegedly discriminatory
behavior, the more probative that remark will be." The remark doesn't
need to be offensive, but is relevant in demonstrating the motivation
of the decision-maker.
With respect to the allegation that Mullinix was fired due to age discrimination,
the court came to a different conclusion. The new VP had heard continuing
complaints about Mullinix's attitude and performance, thought that
she had hijacked a departmental presentation for her own self-promotion,
and wrote in an email that "working with Mullinix is a misery".
There was no indication in the evidence that her firing had anything to
do with age.
The takeaway: If you suspect you have been the victim of age discrimination
in the workplace, be sure to take note of all communications and even
stray remarks made in your presence. They can be crucial in proving your case.
Should you feel you have been subject to age discrimination in your New
York workplace, contact the attorneys at Schwartz Perry & Heller LLP.