Thursday, December 10, 2015

#ElderlyChristmasSongs and age discrimination

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Yesterday, #ElderlyChristmasSongs trended on Twitter. Yes, it’s meant to be a joke, and, yes, some were even funny. Now here’s the part where I get to play Employment Law Scrooge.

The BT Currents blog reminds us why employers need to monitor hashtags such as #ElderlyChristmasSongs and other social media trends.

The Age Discrimination in Employment Act and many state laws prohibit discrimination based on age. The more questionable content generated in the workplace, the better chance an employee can argue there is evidence of a convincing mosaic of discrimination tolerated by the employer. Be sure to remind employees of your company’s EEO policy if you come across any inappropriate content and/or discussions.

Put it this way. If you knew that your employees were posting #RacistChristmasSongs, you wouldn’t think twice about stepping in. You would not want to assume the risk, and certainly wouldn’t want to have to explain in a deposition why you ignored the content. Age discrimination is just as illegal as race discrimination, yet I can picture many of you shaking your heads in disbelief that I suggest that you should act if your employees are posting, in jest, #ElderlyChristmasSongs. And, in an age discrimination lawsuit, maybe these tweets are irrelevant. Maybe they are made by non-decisionmakers, and maybe a judge will buy your argument that they are not probative of specific discrimination against a specific employee. But, maybe a judge will agree that the tweets shed light on a “mosaic of discrimination” within your workplace. Is that a risk worth taking?

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