Is “Tenure” a Euphemism for Age?
Although acknowledging the possibility, the U.S. Court of Appeals for the Fifth Circuit nonetheless found that a manager’s stated refusal to hire “tenured employees” was not direct evidence of age discrimination in this particular case.
As the Fifth Circuit explained, comments will constitute direct evidence of discrimination when they are 1) related to the protected class of persons of which the plaintiff is a member; 2) proximate in time to the complained-of adverse employment decision; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue. If these criteria are not met, such comments are considered “stray remarks” that will not, by themselves, support a claim of discrimination.
In Smith v. AT&T Mobility Services, LLC, an employee sued for failure to promote. In support of his claim, he cited a comment to him from his manager that she was “not going to hire any tenured employees” into a manager role because the new facility is “state of the art . . . with the highest technology and equipment,” and she needs managers who are “innovative” and capable of leading the facility “in the right direction.”
The Fifth Circuit found that “‘tenured employees’ logically appears to be a euphemism for age’” since the promotion in question requires experience or “tenure,” while the comments about technology and innovation have “nothing to do with seniority and everything to do with stereotypes about age.” However, the Fifth Circuit went on to note that direct evidence “proves the fact without interference or presumption,” while “tenured” is not a term that is synonymous with age or generally recognized as ageist. Thus, the plaintiff had to present evidence that his manager intended “tenure” to mean age – such as testimony from other employees that “tenure” “is commonly understood to be code for ‘age’ within the company.”
Thus, whether terms like “tenure” can constitute direct evidence of discrimination may very well depend on the circumstances at a particular company. What is code at one company may not be at the next. But regardless, such language may still be considered indirect evidence of discrimination – and managers should be careful to avoid using terms and phrases that could be construed in a discriminatory fashion.