What happens when you tell a 63 year-old employee that he won’t get the newly created promotion and will be laid off because the company wants a new face?
Nothing, according to the Eighth Circuit Court of Appeals (which hears cases from Minnesota).
James Aulick was the senior IT Director of Fulfillment for Skybridge Americas Inc., a retail order fulfillment business. The company determined that its two operations (the warehouse and distribution center, and the call center) should be serviced by a single, unified IT department and that they should create a new Chief Technology Officer (CTO) position to oversee the combined operation.
Although Aulick was considered, the company ultimately hired an outside applicant for the new CTO position and eliminated Aulick’s position. Aulick then sued under the Federal Age Discrimination in Employment Act (ADEA) and its state law counterpart, the Minnesota Human Rights Act. The lower court dismissed the claim on a motion for summary judgment and Aulick appealed.
Aulick maintained that he had direct evidence of an age-based motivation for his termination, namely Skybridge CEO Kevin Cattoor telling Aulick that the company hired an outsider because they were seeking “a new face.” Aulick argued that “new” meant “young” and that this was a direct admission of age discrimination.
New Can Be Young or Old
The Eighth Circuit strongly disagreed, ruling that the phrase ”new face” was facially and contextually neutral, presumably because a face that was new to the company could be old just as easily as it could be young. They concluded that “[n]o reasonable fact finder could hold otherwise.”
Aulick tried again, citing the company’s conflicting testimony as to who made the decision to let him go, as well as a recent string of four terminations of employees who were 60 or older. The court countered that the law focuses on why the decision was made, not who made it, and that the evidence regarding the company’s rationale for Aulick’s termination had remained quite consistent. Moreover, despite the fact that the company had let go some older workers, they also had hired three new executives age 57 or older (including Cattoor) in the last two years.
The Eighth Circuit therefore affirmed the dismissal of Aulick’s lawsuit.
Courts tell us that “stray remarks” or statements unrelated to the employment decisions being challenged typically are not viewed as direct evidence of discrimination. This prevents employees from cherry-picking occasional slips of the tongue and turning them into evidence in a lawsuit. The “new face” comment appears to fall in this category.
On the other hand, this is not a license to occasionally say anything you want or to argue that words never matter. As we noted in our piece earlier this year entitled Just. Stop. Talking, improvident or improper remarks about an employee’s protected classification can contribute to a finding of unlawful harassment or discrimination.
The best advice is something we hear all the time – think before you speak and choose your words carefully. In this instance, the employer won the case but just think how much time, effort and resources might have been saved if the employer had just told the employee that they were looking for “different viewpoints” or “an outsider’s perspective” instead of “a new face.”
Words may not always carry the day they do matter in the right context. Consider your words carefully and try to use terminology that conveys your meaning without possible subtext.