Note: The Superman’s cape ruling referenced below was subsequently reversed when Securitas appealed to the full appeals court, which issued a 9-3 ruling that the Johnson could not sue Securitas because “the separate aspects of the record Johnson focuses on …do not raise genuine questions of material fact regarding whether Securitas’s asserted reasons for terminating him were pretext or whether age was the “but-for” reason for his termination.” The full court said Securitas put forth a legitimate non-discriminatory reason for terminating Johnson. The company claimed Johnson had left his shift an hour early without permission (Johnson denied this) and delayed reporting a collision with another vehicle.. Moreover, the full court said the supervisor who made the ageist comments about Johnson was only one of three who fired Johnson. The full court refused to “speculate” that the supervisor persuaded the other two supervisors to fire Johnson because of his age.

More Subtle: Just as Harmful

Few managers today are so ignorant as to call an older worker  a “geezer,”  “old fart,” “biddy,” “codger,” “graybeard,” or “old goat.”

The modern discriminator is much more likely to use code terms that are based on ageist stereotypes to describe older workers, like “old fashioned,” “rigid,” “old school,” and” “resistant to change.”

Courts are beginning to recognize the evolution of the language of age discrimination, though, ironically, many courts continue to use arguably ageist terminology in their own judgments and written opinions.

Superman’s Cape

The U.S. Court of Appeals in the Eighth Circuit in a 2-1 opinion recently ruled that security officer, Carlyn Johnson, 76, could  sue Securitas Security Services, USA, Inc. for age discrimination.  Johnson  had been fired after becoming involved in a car accident while on-duty and allegedly leaving his post early.

Among other things Johnson’s supervisor nicknamed him “Superman” and repeatedly told him it was time for him to “hang up his cape.”  The supervisor also told him he was “too old to be working” and compared him to the supervisor’s 86-year-old father who was no longer working.

These comments were the only evidence produced by Johnson of age animus, which is a necessary to prove discrimination under the  Age Discrimination in Employment Act (ADEA).

A  lower court judge dismissed Johnson’s complaint after finding that the supervisor’s comments were “age neutral” stray remarks that did not prove that age discrimination was a factor in Johnson’s dismissal.

The appeals court disagreed. “Viewing the facts in a light most favorable to Johnson, a reasonable jury could find Securitas was motivated to terminate Johnson based on age animus,” the appellate court ruled.

Elderly?

The fact that judges are only beginning to recognize ageist language is sadly evident in their own judgments and opinions which, ironically, contain ageist language.

Helene Love, L.LM, the author of a law review article entitled  Ageism, Language and the Law, says the term “elderly” is used routinely by judges despite the fact that it is widely considered to be an ageist term.  She said social science research shows  the term “elderly” is associated with negative attributes like vulnerability, sadness and loneliness and frailty.  Using the term “elderly” perpetuates common negative stereotypes about older adults, writes Love.

Love cites research showing that older adults do not choose to self-identify with the word “elderly” because it implies frailty, disability or senility.   Love states that under the entry “elderly” in the Thesaurus of Aging Terminology, readers are advised to use the expression older adults.

Love defined ageist terms as “words that are derogatory or demeaning because they depict older adults as possessing largely undesirable traits and characteristics.”

Love’s  article appears in 31 Windsor Review Legal & Social Issues 141 (2011), a publication of the law school of the University of Windsor, Ontario, Canada.

*** Note: I’m writing a book on age discrimination and I would like to hear the stories of readers who have experienced this problem. Please email me at barnespatg (at) gmail.com.