How Employers Attempt To Use Courts To Destroy The Evidentiary Value Of Discriminatory Comments

Having represented employment discrimination victims for more than twenty years, our employment lawyers in Marion County, Florida know that employers have attempted to use the judiciary for decades to destroy the evidentiary value of discriminatory comments. As part of their relentless efforts over the decades to transform the judiciary into their corporate legal department. Employers have persuaded courts to come up with judicially-created rules that employees must satisfy in order for discriminatory comments to have any evidentiary value. These judicially-created rules impose severe limits on the kinds of discriminatory comments that can be used to prove an employment discrimination case.

For example, employers have persuaded courts that in order for discriminatory comments to constitute evidence of discriminatory intent behind the challenged employment decision, the discriminatory comments must be made by a person involved in the challenged employment decision, must be made concurrently with the challenged employment decision, must relate to the challenged employment decision, and must reveal blatant discriminatory animus. If such requirements are not satisfied, courts routinely characterize discriminatory comments as “stray remarks” that are neither probative of discriminatory intent nor evidentiary support for a discrimination claim. In other words, courts declare that the discriminatory comments do not constitute evidence that the challenged employment decision was motivated by unlawful discrimination.

In this article, our employment lawyers in Marion County, Florida explain how the case of Wheat v. Rogers & Willard, Inc.,271 F.Supp.3d 1327 (S.D. Ala. 2017) is illustrative of how employers attempt to persuade courts to come up with judicially-created rules that impose severe restrictions on the kinds of discriminatory comments that can be used to prove an employment discrimination case.

Employment Discrimination Lawsuit

In that case, a man named Wheat brought an employment discrimination lawsuit against his former employer, Rogers & Willard, Inc. (“R & W”), pursuant to the Age Discrimination in Employment Act (“ADEA”). The ADEA prohibits employes from discriminating against employees because of their age. Wheat claims that R & W fired him because of his age in violation of the ADEA.

When he was terminated, Wheat was seventy-seven years old. R & W’s majority owners, Rogers and Willard, made the termination decision. Approximately elven months before Wheat’s termination, Rogers attended a conference. In his notes from the conference, Rogers wrote, “ ‘Fire all the old people.’ Fiat president.” Next to this statement, Rogers wrote, “many large companies bringing in new blood.” Three bullet points later, Rogers wrote, “Older guys—[Wheat] and Jerry—mentor their replacements—same with Diane.” Four bullet points later, Rogers wrote, “Paint a vision of what company will look like in three years, i.e., new, younger employees.”

R & W filed a motion with the trail court seeking dismissal of Wheat’s age discrimination claim. In moving for dismissal, R & W argued that Rogers’ notes did not constitute direct evidence of age discrimination for three separate reasons: (1) the notes are too vague, in that they do not say, “Fire [Wheat]”; (2) Rogers offers an innocent explanation for those notes; and (3) the notes were written about a year before Wheat’s termination. The trial court rejected R & W’s arguments and denied R & W’s motion for dismissal.

Court Rejects Employer’s Desired Restrictions

Turning to R & W’s first argument, the trial court explained that direct evidence of discrimination is “not limited to ‘fire [the employee], he’s too old.’ ” “In any event,” the trial court pointed out, “that is exactly what Rogers’ notes say: ‘Fire all the old people,’ with [Wheat] identified as an ‘older guy.’ ” “To ‘fire all the old people,’ ” the trial court reasoned, “is to fire them precisely because they are old, and identifying [Wheat] as an ‘older guy’ directly marks him for termination because of his age.” “There is not the slightest subtlety or ambiguity,” the trial court concluded, “in this statement, and it falls easily within the ‘most blatant’ remarks.”

Turning to R & W’s second argument, the trial court condemned R & W’s “just kidding” defense. The trial court observed that Rogers testified that “he did not really mean what his notes say.” According to Rogers, “he did not really mean that [R & W] should ‘fire all the old people,’ but was only remembering what he had heard spoken in jest by the president of Fiat at an earlier conference.” Rogers also claims that “he did not really mean [R & W] should ‘bring in new blood’ but was only remembering what he had heard at the earlier conference.” Rogers further asserts that “he did not really mean he intended to ‘replace’ [Wheat] and other ‘older guys,’ only that they should become mentors to younger project managers.” In rejecting R & W’s “just kidding” defense, the trial court noted that R & W “offers no legal authority that it can obtain [dismissal of the case] simply by its decisionmaker’s assertion that he did not mean what he wrote—a position which, if accepted, would amount to an automatically successful ‘just kidding’ defense.”

Finally, the trial court rejected R & W’s argument that to qualify as direct evidence of discrimination, a discriminatory comment by a decisionmaker must be made concurrently with the challenged employment decision. The trial court explained that R & W’s argument failed to account for cases where courts found that discriminatory comments by a decision-maker made approximately two years before the challenged employment decision constituted direct evidence of discrimination. Consequently, the trial court refused to impose temporal restrictions on the use of discriminatory comments and prevent discriminatory comments from being used to prove an employment discrimination case because of the passage of time.

Marion County, FL Employment Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our employment lawyers in Marion County, Florida have fought for the rights of employment discrimination victims for more than twenty years. If you have experienced workplace discrimination or have questions about your rights as an employment discrimination victim under federal employment discrimination law, please contact our office for a free consultation with our employment lawyers in Marion 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.