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Is Reference to Your "Shelf Life" a Sign of Age Discrimination?

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 treatment.

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 performance review.

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.