Millennials, long the target of generational jokes, recently “turned the tables” with the “OK boomer” retort – an irreverent and dismissive answer to those perceived to be part of the Baby Boomer generation. “OK boomer” has become almost ubiquitous: It has been incorporated into countless internet memes and has even been uttered by a 25-year-old lawmaker to an older colleague during a recent New Zealand parliamentary session.
While some may find the phrase to be harmless fun, employers should take note that the federal Age Discrimination in Employment Act (“ADEA”) forbids discrimination based on age against applicants and employees who are 40 or older. While an isolated joke or “OK boomer” wisecrack – even by a supervisory level employee to a subordinate – typically will not give rise to a discrimination claim in the absence of other inappropriate conduct, the targeting of an employee based upon age (or any other protected characteristic) can create legal exposure.
Notably, workers over 40 are not the only class of employees who receive protection based on age in this state. Unlike the ADEA, Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”) also protects employees who are under the age of 40. In fact, in Zanni v. Medaphis Physician Services Corp. (2000), the Michigan Court of Appeals held that the ELCRA is not limited in its application to older workers, and that it also protects workers who are discriminated against based on their youth.
Employers should promote a culture of tolerance and respect for boomers and millennials alike. It is not enough to include a non-discrimination policy in an employee handbook – although that certainly helps. Among other proactive steps, employers should consider periodic training seminars and team meetings to better ensure that today’s “jokes” do not become the lawsuits of tomorrow.
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