Reprinted from the June 15, 2005 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

Flattery Gets You Nowhere... Except Maybe A Courtroom

Conventional and legal wisdom tells managers to refrain from making jokes or disparaging remarks about older employees’ ages. But what about remarks that are complimentary to the older worker? Read on to find out how seemingly positive comments can get a manager in an Age Discrimination in Employment Act (ADEA) jam.

“I feel old and creaky these days,” manager Howard Lundquist remarked. “Where did my youth go?”

“If you’re old and creaky, what does that make me?” Warren Dodge, his subordinate, commiserated.

“What are you talking about? You can’t be more than 50,” Lundquist commented.

“That’s nice of you to think so, but I’m actually closer to 60,” Dodge told him. “And I’m a grandfather!”

“Wow, I can’t believe that. You’re older than me? You definitely don’t look like a grandfather,” Lundquist observed.

“Thanks. I try to take care of myself. But I tell you, it’s not easy,” Dodge responded.

“I know how you feel!” said Lundquist.

COMPLIMENTS KEEP COMING
A few weeks later, Dodge and Lundquist were talking with another manager. When the conversation turned social, the other manager turned to Dodge and commented, “Howard told me how surprised he was to find out you’re older than him.”

“Yes, he was slightly shocked to find that out,” Dodge replied.

“I can’t believe you’re older than Howard, either. He has a lot more gray hair,” she remarked. “You’re in pretty good shape for your age.”

“Thank you, June. I’m not in as good shape as everyone might think, but a compliment is a compliment, and that is very kind of you.”

UNFLATTERING TURN OF EVENTS
It wasn’t very kind, however, when Dodge was terminated in a reduction-in-force. His position was being eliminated, Lundquist told him. But the very next day, a 30-something employee was hired in his place.

Dodge sued the company under the ADEA. In court, Lundquist testified that Dodge had been let go due to poor performance. But the jury didn’t believe either the job elimination or poor performance reasons for Dodge’s termination. It saw that Dodge’s profit margin exceeded that of his cohorts, and that his position had been immediately filled. Between the shifting reasons for the employee’s termination, evidence that these reasons were false, and the age-related remarks made by two managers, the jury sided with Dodge and awarded him $788,371 in damages.

On appeal, the court agreed with the company that the age remarks were insufficient to prove discrimination. But the employee had other evidence on his side. When viewed as a whole, there was enough evidence to support the jury’s finding. Upshot: Verdict stands.

DOESN’T LOOK GOOD
It may seem outrageous that paying compliments to an older worker could contribute to an employee’s winning an age discrimination case. What is important to remember is not whether the comments are positive or negative, but that they touched on a protected characteristic. Those types of comments help an employee link his/her age with an adverse employment action. Even if you have good intentions when complimenting how well an employee looks for his/her age, or how well he/she performs after so many years, beware of how your words could later be construed in court.

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