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Stray Remarks Can Be Crucial in Proving Age Discrimination

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.

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