Not so long ago the words and phrases “dynamic,” “energetic,” “mature” or “recent graduate” peppered the columns of job adverts. That is, until awareness increased of how such language could be perceived by those in a category protected by laws on discrimination. These days, most have heard of the term “unconscious bias” even if they reject the notion that it applies to them, and most are aware they need to double-check their use of language in the workplace in case it offends.
But can we be too sensitive about our use of terminology? The US Court of Appeals in two recent cases seems to think so.
In the first case, Martinez v. Novo Nordisk Inc., the First Circuit rejected claims under the Age Discrimination in Employment Act and Puerto Rico law that the employer’s statement that its ideal candidate would have “energy,” be “dynamic,” and possess “stamina” was not evidence of age-based discrimination under the circumstances.
In this case, as part of a global reorganization, the employer eliminated the 14-person sales staff servicing its Puerto Rico district and created three new positions, for which the sales employees were invited to apply. Two of the employees, aged 48 and 57, who were not selected for the new positions then sued for age discrimination. The trial court threw out the claims, and the employees appealed.
The First Circuit upheld the trial court’s judgment for the employer. The First Circuit noted that all three of the successful candidates were age 47, which was only insignificantly younger than the unsuccessful 48-year-old employee. Thus, under established caselaw, an inference of age bias could not be drawn.
The First Circuit also rejected the claim of the 57-year-old that the employer’s asserted desire for those with “energy” and “stamina,” and who would be “dynamic” suggested bias. The First Circuit acknowledged that there might be cases in which such language could suggest age bias, but not in the current case where three individuals would be responsible for a territory that was previously serviced by 14. Rather, “it was accurate and relevant to describe the new positions as more demanding.” In addition, none of the interviewers made comments to suggest that the 57-year-old lacked these attributes; his non-selection was based on the fact that he offered a weaker plan and lacked certain probing and engaging skills compared with others.
In the second case, Thomas v. Farmers Insurance Exchange, the US Court of Appeals for the 10th Circuit found that a manager’s use of the term “alpha” did not support the gay employee’s claim of sex-stereotyping as a type of sex discrimination under Title VII.
The plaintiff employee had unsuccessfully applied for an account underwriter position as an internal candidate. He requested a meeting with the hiring manager for feedback, during which, the hiring manager told the employee that he had not displayed the necessary leadership skills. The manager also said that if he were hiring for another position in the future, “I might not need a leader, I might have a bunch of alphas over there.” The employee subsequently sued the employer, arguing among other things, that as a gay male he did not conform to the “alpha” male sex-stereotype.
The 10th Circuit found the “alpha” statement was not evidence of sex discrimination because it did not explicitly state anything discriminatory about the employee’s failure to conform to male sex stereotypes. Moreover, if a statement could plausibly be interpreted equally as discriminatory and non-discriminatory, then it does not qualify as direct evidence of discrimination. In this case, although there may be gender-based connotations for the term, one interpretation is a benign reference to leadership qualities.
Of course, these decisions do not mean that employers can apply any criteria or use what may be deemed inappropriate language when advertising or assessing suitability for a position. It is important that qualities considered necessary or relevant for the position should have some rational basis and connection to the job in question and can be proven objectively. Likewise, it is important to review the job and description for a role to consider whether the qualities described are a genuine necessity for the role rather than a “nice to have.” Rigid adherence to perceived requirements can mean that opportunities to bring diversity to the organization are missed.