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LEGAL: All joking aside: Stray remarks land employer in court

Jeff Jones
Tuesday, Nov 11, 2014

A 43-year-old head of sales was hired by a start-up Internet technology company and was employed only three months before being terminated for failing to meet sales quotas. At 43, he was the oldest employee in the company, as most employees in the start-up company were in their 30’s. The defendant employer’s chief executive made a remark to the plaintiff that he needed “to get in shape to keep up with us young guys,” and later referred to the plaintiff’s hernia as an “old man injury” and said, “Look what happens when you try to keep up with the 30-year-olds.”

While normally a 43-year-old would not seem to be a good candidate for an age-discrimination case, particularly when hired at the same age just three months earlier, in this case the discriminatory remarks were made very close to the date the decision was made to terminate the plaintiff, and the court found that a reasonable juror would find that the employer viewed plaintiff as falling into a different age category than other employees and believed this inhibited his ability to perform in a fast-paced start-up environment. Consequently, the court denied the employer’s motion for summary judgment and found that, while the comments were said to have been intended as jokes, whether they demonstrated discriminatory animus was for a jury to decide. This case demonstrates how discriminatory comments can come back to “bite” an employer, even where the comments may be intended as jokes. The judge even quoted William Shakespeare’s King Lear, in which we read: “Jesters do oft prove prophets.” While courts often find such comments to only be “stray remarks,” sometimes they are considered as evidence of discriminatory motivation.

The case is Brown v. Crowdtwist, 122 F.E.P. Cases 846 (S.D.N.Y. 2014).


Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at

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