If you overhear your boss talking about your "shelf life", is
he likening you to a vegetable, or is he slyly referring to your age?
Giving him the benefit of the doubt, since you are a bit pear-shaped,
you let it slide. But you are fired a few weeks later. You then revise
your conclusion about the comment and sue for age discrimination. What
are your chances?
Not great, according to a recent U. S. Court of Appeals
decision which the Supreme Court this week refused to hear. George Roberts, worked
for IBM, was fired, and filed a lawsuit claiming that his firing was in
violation of the Age Discrimination in Employment Act. He was 60 years
old at the time. He claimed that younger employees were treated more favorably
and that he was terminated shortly after he complained about the disparate
He cited evidence of an instant message conversation which took place between
two HR professionals discussing whether to fire Roberts on the ground
that he didn't have enough billable work for the IBM client to whom
he provided technical assistance to justify the expense of paying him.
By the conversation's end, the two HR managers chose to retain him
but they also agreed to reevaluate Mr. Roberts's place in the company
a few months later if his performance continued to decline. On the way
to these conclusions, one of the HR managers asked about Mr. Roberts's
"shelf life." This comment, according to Roberts, played a direct
role in his eventual firing.
Both the lower court and the Court of Appeals found that the term "shelf
life" referred not to Roberts' age, but rather was said in relation
to when Roberts would run out of billable work on his project.
The bottom line, then, is this. Once its euphemisms and acronyms are translated
into English, the instant message conversation unmistakably suggests that
"shelf life" was nothing worse than an inartful reference to
Mr. Roberts's queue of billable work. And that is more than enough
to preclude it from amounting to direct evidence of discrimination in
violation of the federal Age Discrimination in Employment Act, as Mr.
Roberts supposes. As our precedents clearly hold, evidence requiring any
inference to suggest age discrimination, let alone an inference so large
as Mr. Roberts asks us to make about the "shelf life "comment,
qualifies at most as circumstantial, not direct, evidence of an ADEA violation.
Roberts also claimed that further direct evidence of bias could be found
in the fact that a planned round of terminations (in which he mistakenly
thought he was included) was known as "Project Blue." Roberts'
reasoning appeared to be that the code name contained "an allusion
to blue rinses sometimes used by older people or to the resulting hair
styles they sport". The appeals court found that the mere mention
of the color blue did not constitute direct evidence that anyone was discriminated
against on account of age, much less direct evidence that Roberts was
discriminated against on account of his age.
There was another problem. Roberts' performance reviews had been dismal,
and despite taking part in a 60 day program to improve his performance,
they didn't improve. His firing came just a month after his last negative
The takeaway? To show that you are the victim of age discrimination, you
should have direct rather than circumstantial evidence. Direct evidence
could be, for example, a written memo stating that you the company needs
to replace you with a younger worker with fewer qualifications. A passing
remark which is open to interpretation is not sufficient. As the court
stated, "[I]f the content and context of a statement allow it to
be plausibly interpreted in two different ways — one discriminatory
and the other benign — the statement does not qualify as direct
evidence." It also helps if your performance record is unblemished….otherwise,
you are giving your employer the opportunity to claim poor performance
as the reason for your dismissal.
If you feel you have been discriminated against because of your age, you
should contact an employment lawyer to evaluate your case.