Thursday, January 16, 2020

“OK Boomer” makes its Supreme Court debut

Yesterday, the Supreme Court heard oral argument in Babb v. Wilkie, which will decide whether the “but-for” causation standard of proof applicable to private-sector employees in age discrimination claims under the ADEA also applies to federal-sector agency employees.

Even for this employment-law geek, not the most scintillating of cases.

That is, until Chief Justice Roberts (a Boomer) posed this question to the plaintiff’s counsel during oral argument:

So what type of discrimination, any type – let’s say in the course of the, you know, weeks’ long process, you know, one comment about age, you know, the hiring person is younger, says, you know, “OK Boomer,” you know (Laughter.) once to the – to the applicant. Now, you’re only concerned about process. You’re not concerned about but-for causation. It doesn’t have to have played a role in the actual decision. So is that actionable? … So calling somebody a “Boomer” and considering them for a position would be actionable? (Emphasis mine.)

The lawyer ultimately conceded that not every instance of “Boomer” is actionable. When would it be actionable? His suggestion seemed to placate the Chief Justice:

[I]f the decisionmakers are sitting around the table and they say, we’ve got Candidate A who’s 35 and we’ve got Candidate B who’s 55 and is a boomer and is probably tired and – and, you know, doesn’t know — have a lot of computer skills, I think that absolutely would be actionable.

He’s right. There’s a huge difference between one off-hand “OK Boomer” vs. the use of “OK Boomer” in a pointed hiring discussion about an older candidate. There’s also a huge difference, for example, between the n-word (which one radio host compared to “Boomer”) and “Boomer.” The former has centuries of history of hatred behind it. The latter is a months-old meme. Yes, “OK Boomer” can be evidence of discrimination or create a hostile work environment, but definitely not always, and only in limited circumstances (such as direct evidence of age-based animus in an employment decision, or when used repeatedly with scorn or ridicule to create a hostile work environment).

So here’s my suggestion for anyone overly offended by “Ok Boomer” (according to this Gen-Xer). First, let’s all take a deep breath and calm down. Then—

  • Employees, if a younger co-worker calls you a “Boomer” and it bothers you, let them know. If it continues, escalate it to management, who should take your concerns seriously and investigate as it would any other instance of alleged workplace misconduct.

  • Employers, don’t dismiss a complaint about ageism just because it was birthed in a meme. And don’t consider age when making employment decisions or couch those decisions in age-based stereotypes or comments. 

OK, everyone?