Is It Age Discrimination? The Problem With “OK, Boomer”
The viral meme “OK, boomer” officially made it to the Supreme Court when Chief Justice John Roberts spoke it in a session.
Roberts’ use of the catchphrase inspired a lighthearted moment in the courtroom. But more broadly, the question he asked afterward could inspire reflection on its impact in the workplace.
Is “OK, boomer” ageist? What if a younger hiring person said it to an applicant once during a weeks-long process, is that actionable?
What’s In A Meme?
Generational wars are nothing new. To explain this more recent retort thrown by the millennials and Gen Zers to baby boomers – or generally, people significantly older than themselves – is as complicated as the generational divide itself.
Millennials? Gen Zers? For anyone who isn’t up on the latest age cohort classification, here’s a primer:
- Traditionalists, The Silent Generation: Born 1945 and before
- Baby Boomers: Born 1946 to 1964
- Generation X, Gen X: Born 1965 to 1980
- Generation Y, Gen Y, Millennials: Born 1981 to 1996
- Generation Z, Gen Z, iGen, Centennials: Born 1997 to TBD
It may have gone viral, but at least we know the story behind its creation and subsequent shot to fame.
The phrase “OK, Boomer” first appeared online in 2019 but has now made its way into real-world usage. In November 2019, a 25-year-old member of the New Zealand Parliament used the derogatory slap to address an older member of Parliament who commented while she was delivering a speech on climate change.
Several weeks later, climate-change activists charged the field at the Harvard-Yale football game during halftime, staged a sit-in, and chanted the same phrase.
So, What’s the Big Deal?
The problem, which will no doubt manifest itself in an avalanche of age discrimination lawsuits, is that “OK, Boomer” is a derogatory phrase aimed squarely at one specific, demographically related group of people: the baby boomers. It can also target people over 40.
Baby boomers are those who share the distinction of having been born between 1946 and 1964. In 2020, the youngest of them will turn 56.
And that is where Chief Justice John Roberts comes into the picture.
On January 15, 2020, the Supreme Court heard oral arguments in the case Babb v. Wilkie, where a federal employee claimed her boss had discriminated against her because of her age.
While Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin, it does not explicitly prohibit ageism or age discrimination. For that, Congress passed the Age Discrimination Employment Act (ADEA). ADEA prohibits employers from using an employee’s age as a factor in determining promotion, compensation, and discharges when they are 40 and over.
Roberts questioned Babb’s attorney, Roman Martinez, and described a possible exchange that could potentially constitute age discrimination: “The hiring person, who’s younger, says, ‘OK, Boomer,’ once, to the applicant.” The Chief Justice asked Martinez if he thought that would be sufficient grounds for a lawsuit.</p
Martinez replied in the affirmative, stating he felt that it would if it could be tied to evidence of other age discrimination behavior.
Martinez said, “I think if the decision-makers 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 … you know, doesn’t have a lot of computer skills’, I think that absolutely would be actionable.”
On April 6, 2020, the Supreme Court entered its opinion in the case. The court held that under the Age Discrimination in Employment Act of 1967, 29 U.S.C § 633a(a), federal employees can file a lawsuit over any employment decision influenced by age, even if it was not the determining factor.
Yet, the court also opined that even if the personnel decision were tainted by age bias, the relief the plaintiff could get would be limited if they could not “show that age discrimination was a but-for cause of the employment outcome.”
When You’re Tap Dancing on Eggs, Don’t Hop
With the case reversed and remanded to the Eleventh Circuit. 8-1, the jury is still out, so to speak. And we are left to consider the question ourselves.
So here’s the question:
If you’re 40 or older, and a person said “OK, Boomer” to you at your job, did they just discriminate against you?
For the time being, it looks like the most likely answer is: “Maybe. Probably. More than likely. But I dunno, I guess it just depends.”
When the question is that serious, and the answer is that ambiguous, you can bet your AARP card that the correct, legally-enforceable answer will be hammered out in a courtroom.
So what’s the best advice? Don’t press your luck.
- If you’re calling people “Boomer” at work, stop it. It’s rude and disrespectful, and you know it. That’s why you’re doing it. Plus, once this becomes settled law and companies start getting sued for it, you just might find yourself out of a job, or worse, find yourself named as a co-defendant in an age discrimination lawsuit.
- If people are calling you ‘Boomer’ at work, start keeping records of it. Audio or video evidence is best. Be sure to document any other age-related discrimination you notice and be sure to notify your HR Department, insist they make a written record of it, get a copy of it, and keep written records each time you do.
Elizabeth Tippett, an associate professor at the University of Oregon School of Law, strongly recommends that people not use the phrase at work at all. The problem is not only how it is intended; the much more significant issue is how it is received.
Several weeks before the Supreme Court hearing, Tippett was quoted in an article for the website The Conversation about what she thought might happen if the phrase gains traction.
While an occasional good-natured “OK, Boomer” might appear to be OK, Tippett advised that if it can be tied to an ongoing pattern of age-related put-downs or other age-related actions, it is not OK. In fact, it might just be the final straw.
In an article for Inc. magazine, Suzanne Lucas pointed out that if a person said “OK, Boomer,” it is no different than them saying, “OK, Mexican.”
Bottom line: Slurs against age and ethnicity are both off-limits.
Tippet said, “A lot of the internet fights over ‘OK boomer’ revolve around whether the phrase is offensive or not.” What she said next went straight to the heart of the matter.
“When you’re talking about the workplace, offensiveness is not the primary problem. The bigger issue is that the insult is age-related.”
And age-related offensiveness can, and very often does, result in legal action; just ask the EEOC.
Boomers, Age Discrimination and the EEOC
The Equal Employment Opportunity Commission has tracked age-related discrimination complaints since 1997. Between 1997 and 2019, the EEOC processed 438,439 age discrimination complaints.
An interesting take-away from this EEOC charge statistics table is the enormous spike in age discrimination complaints that began in 2007. In 2007, the oldest of the millennials turned 30 and about 75% of all millennials were either in college, were college-age, or had recently graduated from college. We’ll come back to why that is important in a minute.
For the 10-year period between 1997 and 2006, the annual average number of age-related discrimination complaints processed by the Commission was 16,855. In 2006, the EEOC processed 16,548 complaints; right in line with the 10-year average and nothing out of the ordinary.
By the end of 2008, however, that number had shot up to 24,582. That is an eye-popping 45.8% increase year over year. So why is 2007 so significant? Great question.
To answer it, you don’t need to look any further than the American business landscape, specifically the tech sector, between the late-1990s and the mid-2000s.
How Did We Get Here?
By 2007, tech was a perpetual goldmine, the Internet had gone mainstream, Apple released the first iPhone, and the country watched helplessly as nearly 1.5 million acres of California from Santa Barbara County to the US-Mexico border was consumed by what would eventually be called the “Fall 2007 California firestorm”.
Everyone had a cell phone, had internet, and was “connected”. Workplaces had completed the transition into fully computerized entities. All non-computer savvy employees, usually the older ones, struggled to keep up, get retrained, or learn new skills. Many fell behind or simply gave up and faded away.
At the same time, universities everywhere had been quietly churning out tech-savvy Generation X and Millennial 20-somethings for more than two decades. Many were entrepreneurs at heart and believed it was better to make a job than to find one.
And so that’s what they did. Slowly at first, they made millions, and millions, and millions of jobs.
Often from exceptionally humble beginnings (like a garage), Gen Xers and Millennials worked together and built the tech industry from the ground up and even created the tech sector – a whole new category on the stock market. Fresh out of college, they walked in, stole the show, and have been running things ever since. Collectively, they created the “Dotcom Bubble” on their way up.
In the process, they hired tens of millions of other tech-savvy millennial 20-somethings to work for them. After all, who wants to hire and train a bunch of tired old dinosaurs your dad’s age who can’t even send a text message? Why not just hire a bunch of tech-savvy college kids your own age who have the energy, the passion, and the know-how to hit the ground running and take your company to the next level?
And so that’s what they did. They hired college kids: millions of them. Many went on to become multi-millionaires. Some even became billionaires. Sure, the Dotcom Bubble burst back in 2000, but by the time it did, it had ushered in a whole new reality and there was no mistaking it; the Tech Age was here to stay.
The likes of Bill Gates, Steve Jobs, Mark Zuckerberg, and Jeff Bezos built colossal tech giants like Microsoft, Apple, Google, Facebook, Twitter, Amazon, and thousands of others. They remade the business landscape in their own image and their companies became the new high-paying dream-jobs for an entire generation.
The straw that broke the camel’s back was when the real estate bubble popped in late 2007. This had a domino effect that erased $10.2 trillion of America’s wealth, destroyed thousands of companies, put millions of people out of work, wiped out an untold amount of retirement savings, nearly collapsed the global economy, and caused a worldwide financial meltdown. The real estate and finance industries lost millions of jobs, which meant that millions of people needed to find new jobs – rapidly.
With real estate and finance in shambles, many of the highly-paid 40- to 65-year old financial-whizkid-turned-job-seekers looked to the tech industry. What they found was an entire industry almost completely dominated by people who were one, two, or sometimes even three decades younger than they were. They were being interviewed by tech-savvy youngsters who spoke a language they didn’t speak and were competing against tech-savvy youngsters fresh out of college for jobs that, quite often, they barely understood.
And therein lies the problem.
Tech companies are notorious for hiring young candidates, even before they graduate from college, and they have been a popular target for age discrimination lawsuits because of it. Litigation has proven time and again that ageism is blatant in tech because they rarely hire new people over the age of 40.
- In June 2019, WeWork was sued for age discrimination
- In July 2019, Google paid $11 million to settle a lawsuit filed by 200+ jobseekers who were denied employment because they were over 40
- Menlo Park Staffing warned the tech industry recently that the secret was out
- Between 2012 and 2016, more than 90 age discrimination lawsuits were filed against tech companies in the Silicon Valley. Hewlett-Packard leads the pack and will likely spend the most time in court with 28 lawsuits filed since 2013.
- Cisco Systems is named as defendant in 11 suits, followed by Apple (9), Google (8), and Oracle (7) and Genentech (7). Yahoo, Intel, LinkedIn, Facebook, Tesla Motors and Twitter have also been sued.
- The rise in ageism in tech is undeniable.
- IBM was sued in 2019 for “targeting “Gray Hairs”.
And that’s just the tip of the iceberg.
What’s A Boomer To Do?
Since “OK, boomer” is now a thing we all are going to have to deal with, it is worth mentioning that Baby Boomers are not the only demographic who are protected under the ADEA law.
Generation X, the generation born after the baby boomers, encompasses people born between 1965 and 1981. Nearly all Generation X people are now 40 or over and that makes them eligible for protection under the ADEA as well.
And now, in one of life’s many ironies, millennials – the generation that started the whole “OK, boomer” thing, to begin with, will start turning 40 next year. When they do, they will increasingly find themselves falling victim to a discrimination-driven system that they themselves helped to create.
Be that as it may, the oldest of the Gen Zers, born in 1995, must endure the “snowflake” and “participation trophy” insults without much legal recourse for another 17 years. At least they have one thing to look forward to, however. By then, there won’t be too many boomers left to kick around.
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