Recent Decisions Reaffirm the Need for Managers to Be Sensitive to Remarks that May Be Indicative of Discriminatory Intent

Four decisions reported over the past two weeks reinforce the need for managers to be sensitive to the use of language in the workplace that may be used by current or former employees to claim that a manager acted against the employee on the basis of some unlawful animus. The language used ranges from comments that appear to demonstrate bias to comments that appear innocuous on their face.

In Woody v. Covenant Health, 2013 WL 1912610 (E.D. Tenn. May 8, 2013), a federal court in Tennessee denied the employer's motion for summary judgment in an age discrimination case based, in part, on evidence that a supervisor not only said that she was looking for "young rising stars" to act as shift leaders, but that she actually posted notices saying the same thing (the supervisor denied that she had used that language in the posters).

In Haskell v. Cook County Housing Auth., WL 1943275 (N.D. Ill. May 9, 2013), a federal district court in Illinois held there was sufficient evidence of retaliation against an African-American employee who was called "ghetto" by her supervisor.

In Curtis v. Unionville-Chadds Ford Sch. Dist., 2013 WL 1874919 (E.D. Pa. May 1, 2013), a federal district court in Pennsylvania denied the employer's motion for summary judgment in an age discrimination case based, in part, on a principal's stated concern that a teacher had expressed that she could not recall an event and must be having a "senior moment." In other words, in this case, the principal did not assert that the teacher was having a "senior moment." Rather, he was responding to the teacher's self-proclaimed explanation.

The foregoing cases are similar to another recent case in which a court of appeals reversed a decision granting summary judgment for an employer in an age and gender discrimination case. Among other evidence, the court relied on a memorandum in which a manager recommended that employees be terminated if they would not "fit within" the company's new focus. On its face, "fitting in" does not reflect any discriminatory animus. The problem with such phrases, however, is that they are subjective and have been used in the past to cover-up possible underlying discriminatory intent.

These cases demonstrate two key points. First, the cases demonstrate that, to be considered evidence of discriminatory animus, a supervisor's statements need not be blatantly discriminatory – at the summary judgment stage, the plaintiff is entitled to infer animus if the statement that reasonably could be construed in that fashion, even if the speaker did not actually intend such a result.

Second, the cases demonstrate that many managers would benefit from training on how to appreciate that poor word choices can and will be used against them by skillful plaintiff's attorneys. For example, managers need to understand the significance between saying someone is a "rising star" and a "young rising star." Likewise, they need to understand that a seemingly amorphous phrase such as "fitting in" can be construed to have a discriminatory meaning when used in certain contexts.