New Blood vs. New Face: The Subtle Language of Age Discrimination

The Rise of Age Discrimination

According to recent news articles, age discrimination is on the rise. While there are many reasons for this, our practice has noted a certain “perfect storm” of market factors contributing to this trend. With many middle-aged Americans facing greater financial uncertainty in retirement, the need to receive a paycheck past the normal age of retirement is becoming necessary to make ends meet.

Yet in the present labor market, where tech-savviness is valued and age is seen as a liability, older members of the workforce are fighting an uphill battle. Some industries, like the financial sector, see age as an advantage, indicative of maturity and wisdom. However, for the vast majority of fields, younger employees are seen as more adaptable, energetic, and teachable.

Common Signs of Age Discrimination

When a company chooses someone to fill a position or receive a promotion, a younger employee may be selected over an older and more experienced one, thereby raising questions of age discrimination. In such a scenario, the language used by the employer when breaking the news to the older employee is crucial in differentiating an unlawful situation from simply an unfortunate one. The path leading up to the older employee’s termination is usually set in motion months beforehand, and one of the most effective ways for an employer to discredit an employee’s age discrimination claim is to contend that the employee was fired on the grounds of poor performance. Therefore, employers or supervisors will more often than not find pretextual performance problems to pin on the older employee while complimenting the more youthful one.

However, the true test of whether or not the firing of an older employee is an example of discrimination often lies in the language used when terminating the employee. Employers will often justify their decision by explaining to the older employee that the company hoped to find some “new blood” or someone that could bring “energy” to the company. Such phrases can create doubt for a judge or jury about the legitimacy of the termination, and usually signify age discrimination. What makes these cases so tricky, though, is that very similar phrases can be used by employers without being interpreted as discriminatory.

Age Discrimination is Difficult to Spot

Sixty-one year old James Aulick, an information technology professional for Skybridge Americas, Inc., was fired recently due to his poor performance with the company. Aulick was also passed over for several promotions in the past, despite being told that he had the “inside track” to a promotion in early 2013. When Aulick was told that he was being terminated by Skybridge, the reason given was that upper management wanted a “new face” in the company.

Aulick believed he had been fired on the basis of ageism, and at first look, his claim sounded reasonable. Two other Skybridge employees over the age of sixty had been terminated at the same time as Aulick, and the company once replaced a 70-year old employee with one over 20 years younger in the past. Coupled with the comment made by upper management in wanting a “new face” for the company, Aulick’s argument seemed convincing. Yet what distinguishes this comment from a similar one, like “new blood,” is the fact that wanting “new blood” for a company implies youthful energy that can only be achieved through hiring a younger employee, while a “new face” implies the need for change, not necessarily on the basis of age. As such, the court did not find an inference of discrimination in the comment or the termination.

How to Fight Age Discrimination

Maintaining your status as an older employee in a labor market that emphasizes youth can be difficult, but New York employees who choose to educate themselves about the subtle differences in the employment law of age discrimination will better protect themselves. Understanding signs of age-related bias, like excessive criticism for older employees on a performance review, the firing of several older employees at once or the articulation of specific age-related stereotypes by a boss or supervisor can be examples of age discrimination in the workplace. Consulting a lawyer to help with your situation is a key step in discovering whether or not you are a victim of age discrimination in your work place. The Law Office of Christopher Q. Davis is happy to assist you in this situation, as well as all other employment matters. Call us today at (646) 430-7930.