Are Discriminatory Remarks Made As A Joke Evidence Of Discrimination?

In employment discrimination cases, our employment discrimination lawyers in Sumter County, Florida have learned, employers almost never concede that a manager or supervisor made a discriminatory remark. When forced due to overwhelming evidence to acknowledge that a manager or supervisor did in fact make a discriminatory remark, employers fall back on one of their go-to defenses in employment discrimination cases: the discriminatory remark was made as a joke.

When characterizing discriminatory remarks as a joke, employers argue that the discriminatory remarks are not evidence of discrimination because the employee making the remarks did not intend to be offensive or cause harm. Rather than acting with an intent to offend or cause harm, the employee making the discriminatory remarks was “only joking.” Having ascribed an ostensibly benign motive to the employee making the discriminatory remarks, employers then maintain that remarks made as a joke are not evidence of discriminatory animus or a discriminatory employment decision. In other words, according to employers, discriminatory remarks that are made as a joke have no evidentiary value in employment discrimination cases.

In this article, our employment discrimination lawyers in Sumter County, Florida explain how the decision in Aday v. Westfield Insurance Co., 2022 WL 203327 (6th Cir. 2022) demonstrates that even if discriminatory remarks were made as a joke, they are still evidence of discrimination.

Age Discrimination Lawsuit

In that case, a man named Aday brought an age discrimination claim against his former employer, Westfield Insurance Company (“Westfield”), pursuant to the Age Discrimination in Employment Act (“ADEA”). The ADEA prohibits employers from discriminating against employees on the basis of age. Aday claims that Westfield failed to hire him because of his age in violation of the ADEA.

In July 2005, Westfield hired Aday as an insurance claims specialist at its office in Cincinnati. Prior to joining Westfield, Aday had obtained approximately 28 years of experience in the insurance industry, including 12 years in leadership roles. In 2010, Aday was promoted to the position of Auto Unit Leader. In 2016, Aday transferred out of his leadership role as Auto Unit Leader to become a litigation claims specialist.

In April 2017, when he was 63 years old, Aday notified Westfield that the would be moving to Seattle because his domestic partner had accepted a job in the city. Aday made clear that he wanted to remain employed with Westfield, preferably working remotely in his litigation claims specialist role. Westfield denied his request to work remotely, but allowed him to remain in the position in Cincinnati as long as he wanted. Over the following months, Aday searched for any position at Westfield that could support remote work from Seattle.

One day during the summer of 2017, shortly after Aday announced his intention to move to Seattle, Aday, the National Claims and Customer Service Leader, Bowers, and other employees were eating in the Westfield lunchroom. The conversation shifted to who would retire next and Bowers allegedly gestured toward Aday and said, “this one is up.”

Older Worker Denied Position

In July 2017, the Casualty Injury/General Liability Leader, Lilly, posted an announcement stating the company was looking for candidates to fill vacancies for Unit Leader roles in her department. Bowers was Lilly’s second-level manager. Aware of the problems his move to Seattle had been for other positions for which he applied, Aday contacted Lilly before submitting his application to see if the Unit Leader positions were even an option. Lilly encouraged Aday to apply. In August 2017, Lilly and another manager, Bidinger, interviewed Aday. At the end of the interview, Lilly and Bidinger told Aday that he had “hit it out of the park.” Bidinger even told Aday at the end of the interview, “you’re the one to beat.” On August 31, 2017, Lilly notified Aday that he did not get the job, and shared that a 45-year old woman and a 50-year old man had accepted the two positions.

On September 14, 2017, Aday spoke with a complex claims analyst, Neumeyer, at Westfield’s home office. During their conversation, Aday alleges that Neumeyer stated that he had spoken with one or more managers about the decision not to hire Aday and that Neumeyer purportedly said, “everyone thinks it’s time for you to put up your piggies, relax, and let your wife be the breadwinner, you’ve earned it.”

On September 18, 2017, after learning that he had not been offered either Unit Leader position, Aday gave up looking for a new job within the company and submitted his irrevocable request for retirement. Aday officially retired on October 31, 2017 and moved to Seattle.

Jokes Are Evidence Of Discrimination

The trial court dismissed Aday’s age discrimination claim. On appeal, the U.S. Sixth Circuit Court of Appeals reversed the trial court’s decision and reinstated Aday’s age discrimination claim. In reversing the trial court, the Sixth Circuit focused on the alleged remark by Bowers that “this one is up” and the alleged remark by Neumeyer that “everyone thinks it’s time for you to put up your piggies.”

Westfield argued that the alleged remark by Bowers was not evidence of age discrimination because Bowers “was joking.” In rejecting this argument, the Sixth Circuit explained that courts have ruled that “statements may be probative of discrimination even if they are made as a joke.” Thus, the appellate court pointed out, even if Westfield was “correct in arguing that Bowers was joking when he made the comment, it may still operate as probative evidence of discrimination.” The appellate court believed that “by themselves, neither Bowers’ nor Neumeyer’s comment” would be sufficient to prove age discrimination. However, the court of appeals found that when “considering the comments together,” they are sufficient for a reasonable jury to conclude that Aday was not selected for the Unit Leader position because of his age. Consequently, the Sixth Circuit sent the case back to the trial court for a jury trial on Aday’s age discrimination claim.

Sumter County, FL Discrimination Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our employment discrimination attorneys in Sumter County, Florida have fought for the rights of employment discrimination victims for more than two decades. If you have been discriminated against at work or have questions about your rights as an employment discrimination victim, please contact our office for a free consultation with our employment discrimination lawyers in Sumter County, Florida. Our employee rights law firm takes employment discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery, and our attorney’s fees come solely from the monetary award that you recover.