Labor & Employment Law

"Lipstick on a Pig" -- Stray Remarks as Evidence of Discrimination

As political pundits talked about lipstick and pigs over the last several days, it occurs to me that this latest round of political posturing bears more than a passing resemblance to the disputes that animate much employment litigation.

For example, before replacing an over-40 worker with an outside consultant a manager might be heard to say that the company needs some "young blood," or that you "can't teach an old dog new tricks."    So what, if anything, do such comments demonstrate?  The Defendant will argue these are just commonplace cliches being used to demonstrate an innocuous point -- i.e., that the Company needs "change."   The Plaintiff will argue that using these expressions is either intentional "code," or at least evidence of unconscious bias against older workers.

No one can read the speaker's mind and both sides have every incentive to stretch the interpretation as far as they can in their direction.  Because such interpretations are very factual and context-specific, however, judges are often inclined to let the jury make the call.  Thus, the difference between a pig and a pig with "lipstick," might be the difference between having a case dismissed on summary judgment and having it argued to a jury.

Full post as published by California Labor & Employment Defense Blog on September 11, 2008 (boomark / email).