Critical thinking is an important skill for every employee, including managers. But a supervisor’s ill-timed disapproving remarks about his employer’s hiring process can be misconstrued and may expose the organization to legal repercussions.

Such were the circumstances in Chapotkat v. County of Rockland. In this case, the U.S. Court of Appeals for the Second Circuit considered whether a supervisor’s critical comments demonstrated age-based stereotyping in violation of the Age Discrimination in Employment Act (ADEA).

Promotion interview

The plaintiff, a 50-year-old county employee, brought an action alleging that his employer refused to promote him because of age discrimination. The trial court entered summary judgment in the county’s favor, and the employee appealed.

On that appeal, the plaintiff argued that his supervisor’s comments to him during a promotion interview showed the discriminatory intent. The supervisor had stated that he didn’t “like when people in their late fifties and sixties come and they don’t stay here.” The supervisor further stated that he didn’t “like the process of selection,” and that he “preferred someone who could stay here for a long time.”

But, contrary to the plaintiff’s assertions, the appeals court didn’t find that the exchange with the supervisor demonstrated age-based stereotyping using age as a proxy for productivity and competence. The comments, the court explained, didn’t indicate any “inaccurate and stigmatizing stereotypes” of older employees. Although the supervisor had mentioned age, his words expressed a concern with the inefficiency of a frequently occurring hiring process.

Additionally, when the supervisor asked the plaintiff his age during the interview, the plaintiff replied and then added that he intended to work for 15 more years. Thus, the plaintiff was presented with evidence that the supervisor’s concern wasn’t with his age but rather how long he might remain in the position — a legitimate inquiry.

Plus, the supervisor had previously hired employees older than the plaintiff, and the employee who did receive the promotion was as qualified for the job as the plaintiff. What’s more, the “late fifties and sixties” comments didn’t even apply to the plaintiff because he was 52.

Insufficient evidence

Ultimately, the appeals court affirmed the trial court’s ruling and held that summary judgment was appropriate because the plaintiff had failed to present sufficient evidence to create a genuine issue as to whether age was a “but for” cause of the county’s decision to deny him the promotion.

The appellate court held that, even if an employment decision is driven by factors intertwined with age, the decision isn’t a violation of the ADEA so long as it’s motivated by some factor other than age. So, even though the county may have unfairly chosen someone instead of the plaintiff for promotion, the record didn’t suggest that age was the “but for” cause for its doing so.

Important reminder

This case serves as an important reminder that the “but for” standard of liability under the ADEA is a more difficult standard of causation for a plaintiff to prove than the “mixed motive” standard applied to discrimination claims based on sex, race, color, national origin and religion under Title VII. Nonetheless, you should still carefully and thoroughly train management on how to properly communicate with staff. Although the employer here emerged victorious, it still had to endure lengthy and costly legal proceedings. 

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