OK, Boomer…Does Your Employee Have an Age Discrimination Claim?

ABSTRACT: Bread. Cherry.  Bogart.  Bippy.  Fink.  IDK what any of these words mean, but apparently, they are slang words popularized in the 1960s by Boomers.  Find out about Boomer discrimination and how Boomers aren't too different from Millennials (their generational arch nemesis) in this far out post.  I promise it won't be a drag.

We’ve all heard it (and in my case, I am publishing it – sorry, HR!): OK, Boomer. This phrase has risen in popularity over the years as a way of suggesting that Baby Boomers (i.e., those born between 1946 and 1964) have mindsets or attitudes that may be at-odds with those of younger generations. The “OK Boomer” phrase has shown up in viral Internet memes and GIFs, as a way of portraying Boomers as out-of-touch. The Supreme Court has even discussed the meme, when Chief Justice Roberts asked an attorney during oral argument if saying to an applicant “OK, boomer” is enough to qualify as age discrimination.

As discussed in my last post, the Age Discrimination in Employment Act (ADEA), Illinois Human Rights Act (IHRA), and Missouri Human Rights Act (MHRA) prohibit discrimination against employees who are 40 years old or older in any aspect of employment. Similarly, it is unlawful for an employer to harass an employee because of the worker’s age, if 40 or older. Such harassment can include derogatory or offensive remarks regarding an individual’s age, to the point where such comments are so frequent and severe that they create a hostile work environment. These laws clearly protect Boomers from age discrimination in the workforce.

As things stand, using the word “Boomer” in a derogatory fashion is likely not in and of itself enough to establish age discrimination. According to the Seventh Circuit, “isolated comments that are no more than ‘stray remarks’ in the workplace are insufficient to establish that a particular decision was motivated by discriminatory animus.” Merillat v. Metal Spinners, Inc., 470 F. 3d 685, 694 (7th Cir. 2006) (citing Cullen v. Olin Corp., 195 F. 3d 317, 323 (7th Cir. 1999)). With that being said, “this general rule may give way where particular remarks in fact support an inference that unlawful bias motivated the decision-maker, such as when those remarks are made by the decision-maker or one having input in a decision, and are made ‘(1) around the time of, and (2) in reference to, the adverse employment action complained of.’” Id. (quoting Hunt v. City of Markham, 219 F. 3d. 649, 652-53 (7th Cir. 2000)).

Let me sock it to you with what this means. If a 30 year-old employee refers to a 60 year old employee as a Boomer in a derogatory manner, without more, the 60 year old can hardly be said to have suffered age discrimination or a hostile work environment on account of the errant remark. However, if the 30 year-old employee is the 60 year-old’s supervisor and routinely refers to the 60 year-old as a Boomer and the employee suffers some adverse employment action at the hands of the supervisor, the Boomer may have a case under the ADEA or other state anti-discrimination law. Similarly, if the supervisor terminates the 60-year old employer, and near or at the time of the termination refers to the employee as a Boomer, the Boomer may also have a discrimination case. With all that being said, employers should caution their employees at all levels of employment on language that can be perceived as discriminatory. By allowing such language to infiltrate the workplace, employers are simply setting themselves up for a discrimination claim – regardless if the claim has merit.

And finally, Millennials and Gen Z: let’s remember that Boomers deserve respect, and even praise, for your culture today. Millennials – known for their usage of acronyms – should thank Boomers, as acronyms gained popularity in the 1960s during the Cold War and space race between the U.S. and Soviet Union, laying the groundwork for Millennial acronyms, such as OMG, LOL, BTW, FBF, and IMO.    While Millennials use many (some would say ridic) slang terms and phrases., such as “on fleek,” “slay,” and “turnt,” let’s also not forget that Boomers are responsible for such slang words and phrases as “groovy,” “gimme some skin (my FAVE!),” and “outta sight.” So maybe there is more in common between Millennials and Boomers than we think? So don’t flip your wig, you dig?