When Will Rogers advised “Never miss a good chance to shut up”, he probably was talking to the hiring manger in a recent age discrimination case.
Frank Branham applied for a vacant maintenance worker position at Detroit Baptist Manor. He made it through the screening by Human Resources and was referred for an interview with Paul Doelle, Director of Operations.
Even Fools are Thought Wise When They Keep Silent
Branham claimed that during the interview, Doelle said he “was not looking to hire anyone at [Branham’s] age because he had enough staff that was 40 or 50-year-old guys” and that he “needed younger men that can be able to climb ladders and get on the roof.” Doelle admitted that he “probably” referred “to the age of [his] staff” and that he told Branham that he “already had staff members in their forties and fifties.”
Branham emailed his HR contact to complain about Doelle’s statements and the fact that his age obviously was going to keep him from getting the job. Ultimately, the company decided not to fill the opening, prompting Branham to sue for age discrimination under federal and state law. The company eventually filed a motion for summary judgment (early dismissal) with Federal District Court Judge Judith Levy.
Speak Only If It Improves Upon the Silence
The company argued that since nobody was hired for the position, Branham cannot prove that he was wrongfully denied a job or that he was treated differently from any other applicant. In short, if a job is not filled, there really was no opening to begin with.
Branham responded that of course there was an opening. Why else would he have been recruited, screened and interviewed without anyone ever mentioning the fact that there was no actual job to fill? The fact that the company ultimately decided not to hire anyone does not relieve them of liability for a specific decision to deny him the job once they learned how old he was.
The Judge Has Heard Enough
Judge Levy denied the dismissal motion and ordered the case to proceed to a full jury trial. She ruled that it certainly could be inferred from Doelle’s remarks that the company was indeed looking to hire a maintenance worker, just not one as old as Branham. After all, HR had written Branham before the interview to confirm his interest in “the General Maintenance job opening” and it was clear that nobody ever told Branham that there were no jobs available during any of the multiple contacts they had with him.
It also was not lost on the judge that the company was well aware of Branham’s concerns about age discrimination. Therefore, as if to provide the jury with a clear road map, she quite pointedly wrote that it was best for a jury to determine if the company did have a vacant position but chose not to fill it in order to have a better defense to a potential lawsuit.
Bottom Line
It is impossible to take back words once they are spoken. The employer tried the best they could to minimize the impact but the judge appears to have seen through it.
Employers should never let up in reminding their managers and supervisors just how dangerous it can be to make reference to an applicant’s or employee’s race, gender, age or other protected characteristic in an employment-related interaction.