The viral quip sheds lights on the complexities of age discrimination in the workplace.
As recently highlighted by the New York Times, a new phrase emblematic of the real or perceived “war between the generations” has gone viral: “OK, boomer!” The phrase, popularized on the internet and, in particular, Twitter, by Generation Z and millennials, has been used to dismiss baby boomers’ thoughts and opinions, sometimes viewed by younger generations as paternalistic or just out of step.
And, the phrase isn’t just living in Twitter feeds and the comments sections of opinion pieces. Just in time for Christmas, there is “OK, boomer!” merchandise and, recently, a 25-year-old member of the New Zealand Parliament used the phrase to dismiss a fellow lawmaker’s perceived heckling during a parliamentary debate about climate change.
Age (over 40) is a protected category under federal law (i.e., the Age Discrimination in Employment Act). The use of the phrase “OK, boomer” could undoubtedly lead to liability under federal law and any applicable state law—whether the speaker is well-intentioned or not. And, as one radio host recently opined, the phrase “OK, boomer!” may be regarded by some as an outright slur.
While anyone can argue the propriety of whether such a comment should be considered age discrimination, harassment or merely a rude comment (and people have), the fact of the matter is that, under the laws employers face today, the phrase can be cited as evidence of anti-age bias.
The Equal Employment Opportunity Commission, the federal agency tasked with enforcing workplace-discrimination laws, includes an example of a category of age harassment on its website: “offensive or derogatory remarks about a person’s age.” “OK, boomer” may well fall within that definition. While an off-handed or isolated remark generally will not lead to liability under the ADEA, that does not mean that a worker to whom the comment was directed will not use it as evidence of a “hostile environment” created by supervisors, co-workers or some combination thereof.
In 2018, the EEOC received 16,911 complaints of age discrimination—that’s over 46 complaints of age discrimination per day. The statistics peaked at an all-time high of 24,582 complaints of age discrimination in 2008, coinciding with the last economic crisis, which is another reason an employer should take appropriate precautions, as outside forces can have unanticipated consequences in the workplace.
The EEOC recovered $77 million last year from employers as a result of age-related complaints—and that amount does not include substantial sums recovered by employees who prosecuted claims against their employers with the use of their own attorneys. For example, a jury ordered the office-supply company Staples to pay $16 million in an age-discrimination case brought by a former manager in 2012. The evidence that led to that gargantuan single-plaintiff verdict included a comment from an employee who suggested that older workers were “slow [as] molasses.”
Similarly, fast-food giant Jack-in-the-Box recently was hit with a $15.4 million verdict in a dual age- and disability-discrimination lawsuit in which the employee alleged that her boss referred to her as “grandma” because of the way she moved around the restaurant.
These comments can form the basis of an age-discrimination lawsuit, especially when coupled with a termination for seemingly unrelated reasons. Employers should take every precaution they can to alert their employees to the seriousness of an arguably innocuous phrase like “OK, boomer.” To start, employers can use the popularity of the phrase to begin a dialogue with their employees to follow these best practices to prevent claims of discrimination and harassment:
- Explain why “OK, boomer” may be discriminatory. Due to its internet origins and tongue-in-cheek smugness, employees may bristle when they’re told they should not use the phrase at work. Take this as a moment to remind them about company policies on the subject, and tell them why the phrase could be considered discriminatory or harassing. Learning the basis for its discriminatory status may shed light on what other behaviors might be perceived as harassing or discriminatory.
- Discuss age discrimination in general. In some states, including New York, age-discrimination protection is provided to anyone over the age of 18. So, just as “OK, boomer” might be discriminatory, a 60-year-old employee’s comments about a 30-year-old’s “millennial attitude” could lead to liability. Make sure to know your local and state laws and your company’s own policies in the area, and counsel your employees accordingly.
- Describe the complexities and nuances of age discrimination. Unlike some other protected categories, age discrimination can occur in a different context than other forms of discrimination and harassment. For example, members of the protected class have been known to make light of themselves on occasion (g., “I’m a dinosaur when it comes to new technology” or “You can’t teach old dogs new tricks.”); similarly, a seemingly innocent question to an older worker about when she expects to retire could trigger a claim. Make sure your employees know that, although an employee might make fun of him or herself, that does not give other employees carte blanche to pile on.
- Compare “OK, boomer” to other phrases to reinforce what is discriminatory. Extend the conversation to different protected categories. If your employees cannot appreciate why “OK, boomer” could be problematic, ask them if “OK, Asian” or “OK, handicapped” would be acceptable. Obviously not. In the eyes of the law, someone’s status as a baby boomer is protected just as much as someone’s status as a member of a certain race or as a disabled person.
- Discuss other commonly used phrases that could be discriminatory. While most of your employees would be wary about using words like “disabled,” ask them if they would use “crazy” or “nuts” when describing a co-worker. These words, much like the word “boomer,” may not set off the internal warning signs that alert employees that perhaps they should not say the word in an office setting; however, these terms can very easily trigger or be the subject of discrimination and harassment lawsuits.
“OK, boomer” may seem completely benign to some employees who do not recognize it as potential age discrimination or harassment. That is why it provides a perfect opportunity to discuss the topic with your employees and to open a dialogue about exactly what discrimination/harassment is and the various ways it manifests itself in the workplace.
Anthony J. Oncidi is a partner in and chair of the Labor and Employment Department of Proskauer Rose LLP in Los Angeles. Cole Lewis is an associate in the Department.