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Nod Your Head, Go to Court 04-02-03
- By Rita Risser

Most managers know they aren't supposed to make inappropriate comments. But they often think that if a subordinate or peer says something inappropriate in their presence, it's okay for them to say nothing. A recent court case dispels that myth.

A 69 year old painter was laid off in a general layoff. One, younger, painter was retained, so the laid off employee sued for age discrimination. In addition to the inconsistent treatment, the older employee pointed to two incidents involving the President of the company.

In the first incident, the President said the painter was "too old" for the job. If that had been the only incident, it might have been treated by the court as a stray remark and not indicative of age discrimination.

But there was a second incident. A friend of the painter asked the President's secretary, in front of the President, why the painter was laid off. When the secretary said he was laid off because he was too old, the President nodded his head in agreement.

The court held that when the President nodded his head in agreement, that was direct evidence of his discriminatory intent. The painter was allowed to pursue his case to a jury trial.

What you should do: Whenever any employee asks about why another was laid off, a good manager should say, "That's confidential, but I can assure you that we followed proper procedure." If a subordinate says something inappropriate, whether a comment or a joke, any manager present should immediately state that such a comment is not consistent with company policy.

McDevitt v. Bill Good Builders (7th Cir 03/17/2003)

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.
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