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“Inartfully worded” Instant Messages did not Support Claims of Age Discrimination


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Kryder

By Patricia Porter Kryder


Shelf Life
Two human resource managers for a large technology company exchanged instant messages in which they discussed the possible elimination of a senior employee’s position because he didn’t have enough billable work to justify the expense of paying him. Although the two managers decided to retain the senior employee and reevaluate his performance in a few months, the instant messages leading to this decision made references to the employee’s “shelf life.”

Eventually, the employee was discharged from the technology company, and the employee sued for age discrimination.  The employee pointed to the instant messages referencing his “shelf life” as evidence of age discrimination, since “shelf life” generally refers to an item’s freshness in the supermarket context.

Meaning of euphemisms
Considering whether the reference to the employee’s “shelf life” implicated his age, the Tenth Circuit concluded the euphemism instead clearly referred to his workload.  At the time of the instant messages, the employee was assigned to provide technical assistance to one of the company’s clients, and there was concern the employee would not have enough billable hours to justify his salary.  The whole point of the discussion was to determine which positions were not cost effective for the company and could be eliminated. If there were ample billable hours left on the assignemnt, the two HR managers did not want to eliminate the employee’s position. Accordingly, the court found the euphemism “shelf life” referred to the amount of billable hours left on the assignment, not to the employee’s age.  In fact, when the managers determined the employee had enough paying client work to keep him occupied for the present, they removed his name from the list of employees to be discharged.

Euphemisms and acronyms in instant messaging conversations must be viewed in the substantive subject matter context in which they are made. Although the court found the use of “shelf life” in the human resources managers’ instant messaging to be “inartfully worded,” such a reference was not in and of itself evidence of age discrimination in violation of the federal Age Discrimination in Employment Act (ADEA).  Without any further evidence of age discrimination, the Tenth Circuit determined the technology company was not liable for a violation of the ADEA.

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